SHARION AYCOCK, District Judge.
Before the Court is Board of Mississippi Levee Commissioners' Motion for Summary Judgment [31], [32]; Environmental Protection Agency's Cross Motion for Summary Judgment [38]; and National Wildlife Federation, Mississippi Wildlife Federation, and Environmental Defense Fund's Cross Motion for Summary Judgment [41].
This dispute arises from the United States Environmental Protection Agency's ("EPA") decision to veto, under Section 404(c) of the Clean Water Act, 33 U.S.C. § 1251 et seq., the Yazoo Backwater Project. The issue presented in this action, while fairly narrow, appears to be quite novel. The Board of Mississippi Levee Commissioners contends that the EPA's veto was illegal because the Yazoo Backwater Project is exempt from Section 404(c) regulation under Section 404(r) of the Clean Water Act. As such, this case turns on whether the Yazoo Backwater Project falls within Section 404(r)'s limited exemption.
The Yazoo Backwater Project has an extensive history. The Project at its basic level is an effort to control flooding in Mississippi, consisting of various flood control
Congress passed the Clean Water Act ("CWA") in 1972 with the goal of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (1994). The CWA regulates the discharge of dredged or fill material into the navigable waters of the United States through a permit system under Section 404 of the Act. Id. at § 1344. The Army Corps of Engineers ("Corps") administers this system. Id. at 1344(c), (d). To issue a Section 404 permit, the Corps must ensure that a number of regulatory requirements are met. A dredge or fill action (1) must not "cause or contribute to significant degradation of the waters of the United States," see 40 C.F.R. § 230.10(c) (1999), (2) must not cause or contribute to a water quality violation, see id. at § 230.10(b)(1), and (3) must be in the public interest, see 33 C.F.R. § 320.4(a) (1999). Although the Corps does not issue Section 404 permits to itself for dredge or fill activities that it implements, see 33 C.F.R. § 335.2 (1999), Corps projects must generally comply with EPA's regulatory requirements for dredge and fill permits, commonly referred to as the "404(b)(1) guidelines," see id. at 335.1, 337.6.
Section 404(c) was enacted in 1972, apparently for purposes of striking a compromise between the Corps and the EPA.
In the 1977 Amendments to the CWA, Congress exempted from Section 404 permit requirements certain federal construction projects. 33 U.S.C. § 1344(r). Section 404(r) provides as follows:
Id. Section 404(r)'s "narrow exemption" was added to the CWA "in recognition of the constitutional principle." See COMMITTEE ON PUBLIC WORKS, 95TH CONGRESS, 2D SESSION, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Volume 3 at 524, 288 (Comm. Print 1978). However, Congress "limited the exemption so as to ensure that the Congress will have full information on the impacts of the dredged or fill material associated with the project when it determines whether or not to authorize the project or to appropriate funds for its construction." Id. at 288. Thus, a federal project "specifically authorized" by Congress may be exempt from the EPA's veto authority under Section 404(c) if the requirements of Section 404(r) are met. That is, the Conference Report "emphasized that the failure of a project to meet the[ ] [Section 404(r)] requirements will result in the project having to obtain a section 404 permit." Id.
The National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq., is an "essentially procedural" statute, meant to ensure "a fully informed and well-considered decision." Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). To ensure a well-considered decision, NEPA requires that when an agency proposes a "major Federal action[] significantly affecting the quality of the human environment," the agency must prepare and circulate for public review and comment an environmental impact statement ("EIS") that examines the environmental impact of the proposed action and compares the action to other alternatives. 42 U.S.C. § 4332(2)(C).
With authority derived from NEPA, the Council on Environmental Quality ("CEQ") has been directed to promulgate regulations applicable to all federal regulations.
In regards to the preparation of an EIS, CEQ regulations state that an EIS shall be prepared in two stages: a draft stage and a final stage. 40 C.F.R. § 1502.9. The essential process is as follows: A draft EIS "shall" be prepared first, and then it must be published in order to obtain comments from the public and from the appropriate federal, state, and local agencies. Following a public comment period, a final EIS "shall" be prepared. The final EIS must respond to all comments received on the draft EIS. In response to comments received and in preparing the final EIS, the agency may modify the alternatives, information, or analyses contained in the draft EIS. See id. at § 1503; see also 33 C.F.R. § 230.19(d). Further, an agency can requests comments on a final EIS before a decision is finally made. See id. at § 1503.1(b).
In order to complete the required NEPA and EIS process, the CEQ and Corps regulations both require the preparation of a Record of Decision ("ROD"). 40 C.F.R. § 1505.2 ("At the time of its decision (§ 1506.10) or, if appropriate, its recommendation to Congress, each agency shall prepare a concise public record of decision."); 33 C.F.R. § 230.14 ("A record of decision shall be prepared by the district commander ... for the signature of the final decisionmaker as prescribed by applicable Corps regulations."). The ROD is a statement of the agency's final decision, and it should identify all alternatives considered and specify the alternative(s) deemed to be environmentally preferable.
The history of the Yazoo Backwater Project actually starts with a predecessor of the Flood Control Act ("FCA") of 1941: the FCA of 1928, which was passed in response to the Mississippi Flood of 1927. See FLOOD CONTROL ACT OF 1928, 70th Cong., Sess. 1, Ch. 596 (May 15, 1928). The 1928 FCA authorized, through the Mississippi River and Tributaries Project, the construction of a system of river levees. The FCA of 1928 also funded the construction of diversion floodways that would route off some of the Mississippi floodwaters before reaching the River's lower reaches.
In March 1941, the Mississippi River Commission ("MRC") issued a report, recommending that the Yazoo Backwater Area be protected from floods by extending the Mississippi River levee to and along the west bank of the Yazoo. See FLOOD CONTROL ON THE LOWER MISSISSIPPI RIVER, H. Doc. 77-359 at 38 (1941). The report also cautioned that this levee would introduce a number of drainage problems, especially on the Sunflower River. Due to this, the MRC studied and proposed three different plans to remedy the drainage problem. Plan "A" considered placing levees on both banks of the Sunflower River. Plan "B" called for an extension of the main river east bank levee to a junction with a previously-authorized level along the west bank of the Yazoo River. The last plan, Plan "C," was similar to Plan "B," yet it also added a measure to increase the height of the levee to fifty-six and a half feet. Plans "B" and "C" also both contemplated that lands within the backwater area below the ninety-foot contour would be used for sump storage. According to the report, this ninety-foot contour was chosen because lands below that elevation are "not suited to agriculture" due to frequent flooding. As such, the report suggested utilizing these flood-prone lands to store floodwater. However, lands above the ninety-foot contour would be protected by a series of pumps "to prevent the sump level from exceeding 90 feet."
As a continuing part of its generalized flood control program, Congress passed the 1941 FCA, authorizing the Corps to spend $12 million to construct a "project for flood control of the Yazoo River," including "combinations of reservoirs, levees, and channel improvements," in accordance with the Commission's March 1941 report. FLOOD CONTROL ACT OF 1941 § 3(b), Pub.L. 77-288, 55 Stat. 639 (Aug. 18, 1941). Of the three plans discussed in the report, the 1941 FCA authorized Plan "C." Accordingly, the plan authorized under the FCA is for a levee system and a system of pumps to protect lands in the Yazoo Backwater Area above the ninety-foot contour, with lands below that level being dedicated to flood storage.
After the passage of the 1941 FCA, the Corps designed and constructed a number of interrelated structures for flood damage protection. However, the 1941 FCA authorized plan was continuously reexamined — specifically in 1958, 1959, and 1962 — by the Corps, with each review concluding
The proposed modification was documented in a July 1982 Reevaluation Report-Environmental Impact Statement ("1982 Reevaluation EIS").
The 1982 Reevaluation EIS was prepared around the same time as a Post Authorization Change Notification Report ("Post Authorization Report"). The purpose of this Post Authorization Report was to determine whether specific congressional authorization was required to implement the various changes made in the 1982 Reevaluation EIS. On February 3, 1983, the Post Authorization Report and the 1982 Reevaluation EIS were sent to Major General John Wall, Director of Civil Works of the Army Corps.
Yet another report lingers in the backdrop of this case and overlaps with the 1982 Reevaluation EIS and the Post Authorization Report. In the Post Authorization Report, it was noted that a "Fish and Wildlife Mitigation Plan ha[d] been developed in combination with the recommended pump plan." This Mitigation Plan was prepared by the MRC in order to comply with the Fish and Wildlife Coordination Act of 1958 ("FWCA").
The Mitigation Report was transmitted to such States and agencies on March 28, 1983. See Letter from Lieutenant General J.K. Bratton, Chief of Engineers of the Army Corps, to Charles R. Jeter, Regional Administrator of the EPA (2 Compendium 631). In Lieutenant General Bratton's letter, he stated:
Id. On the same day (March 28, 1983), two letters were also provided to the Chairmen of the House and Senate Public Works Committees with jurisdiction over the Fish and Wildlife Mitigation Report.
See 3 Compendium 1337, 1338.
The Chief of Engineers forwarded the final report on the Mitigation Plan to the Secretary of Army on July 12, 1984. The Chief of Engineers expressly noted that the Mitigation Plan's final report was sent to the Secretary of Army "for transmission to Congress."
The next document important in this case is the Record of Decision ("ROD") concerning the 1982 Reevaluation EIS. As discussed above, Major General Wall, after reviewing the Post Authorization Report, "delegated" authority to sign and approve the 1982 Reevaluation EIS to the MRC.
After the MRC approved the 1982 Reevaluation EIS and signed the ROD and the Corps responded to the EPA's comments, construction on the Pump Project was initiated in 1986.
In 1997, the EPA initiated an ecosystem restoration prioritization analysis with the United States Geological Survey. This work evolved into ecological and economic model development for nonstructural floodplain management alternatives in the Yazoo Backwater Area. Between 1998 and 2000, EPA participated in a series of interagency and stakeholder meetings with the Corps, representatives of the Board of Mississippi Levee Commissioners, and other interested parties to present the finding of these studies and discuss concerns regarding the proposed project and potentially less environmentally damaging alternatives. The EPA also voiced its concerns with the proposed project in meetings with the Office of Management and Budget (OMB), CEQ, and representatives from Corps Headquarters in February and March of 2000.
In September 2000, the Corps released another Draft Supplemental EIS for the Project.
Despite the improvements made to the Project, the EPA remained concerned with the proposed project's impacts to wetlands and associated fish and wildlife resources, its alleged potential to exacerbate existing water quality problems in the Yazoo Backwater Area, the purported inadequacy of the proposed compensatory mitigation, and the uncertainty associated with the proposed reforestation. The EPA expressed these concerns in a November 3, 2000 letter to the Corps on the Draft Supplement EIS. The EPA also identified a number of potentially less environmentally damaging alternatives that emphasized nonstructural and nontraditional measures to address flooding issues. However, in the end, the EPA concluded that the project was environmentally unsatisfactory and noted that it was a candidate for referral to CEQ under Section 309(b) of the Clean Air Act and the CEQ regulations and for further action under CWA Section 404(c).
Between 2002 and 2005, EPA Region IV worked with the Corps to improve the evaluation of the extent of wetlands in the Yazoo Backwater Area, the extent of
On February 1, 2008, EPA Region IV's Regional Administrator informed the Corps and the Board of Mississippi Levee Commissioners of the Administrator's intent to initiate a CWA Section 404(c) review of the proposed project, based on the Administrator's belief that the project may have an unacceptable adverse effect on fish and wildlife resources. During the 15-day response period following the 404(c) initiation letter (which was extended to March 3, 2008), EPA Region IV met with representatives from the Corps and Board of Mississippi Levee Commissioners. EPA Region IV held a meeting with the Corps and the project sponsor on February 29, 2008, during the initial consultation period. However, even after the meeting, EPA Region IV's Regional Administrator was still not satisfied that no unacceptable adverse effect would occur. Thus, EPA Region IV took the next step in the section 404(c) process: publication of a Proposed Determination in the Federal Register.
On March 19, 2008, the Regional Administrator published a Proposed Determination to prohibit, restrict, or deny the specification, or the use for specification, of certain waters of the United States in Issaquena County, Mississippi, as a disposal site for the discharge of dredged or fill material in connection with the construction of the proposed Yazoo Backwater Area Pump Project. In accordance with 40 C.F.R. Section 231.3(a)(2), EPA Region IV published notice of the Proposed Determination in the Federal Register on March 19, 2008. See 73 F.R. 14806. The notice established a public comment period from March 19 to May 5, 2008, and indicated a public hearing would be held.
The EPA conducted a public hearing at the Vicksburg Convention Center on April 17, 2008, and the public comment period ended on May 5, 2008.
The Recommended Determination was signed by the Regional Administrator on June 23, 2008, and represents the culmination of EPA Region IV's Section 404(c) review of the proposed Yazoo Backwater Area Project. Pursuant to the Section 404(c) regulations, see 40 C.F.R. part 231, the Recommended Determination and its administrative record were submitted to EPA Headquarters on July 2, 2008, initiating the time period for review and final action by the EPA's Assistant Administrator for Water.
On June 24, 2008, EPA Administrator Stephen L. Johnson and Assistant Administrator for Water Benjamin H. Grumbles met, at their request, with two U.S. Senators and one Representative from the State of Mississippi to discuss an alternative to EPA's ongoing section 404(c) review of the proposed Yazoo Backwater Area Project. Administrator Johnson indicated that completion of the section 404(c) review would not preclude such initiatives; instead, the Administrator indicated that the information and results from EPA's review could inform discussions on what are viable alternatives. Administrator Johnson also stated that the EPA would provide the Mississippi congressional delegation with copies of the Recommended Determination, which the EPA delivered to the U.S. House and Senate buildings the following day.
In accordance with the section 404(c) regulations, see 40 C.F.R. Section 231.6, the Assistant Administrator for Water offered the opportunity for final consultation to the Office of the Assistant Secretary of the Army for Civil Works and the Mississippi Board of Levee Commissioners, by letters dated July 2, 2008. The letters provided the Department of the Army and the project sponsor an opportunity to present additional relevant information for the record, including information about any corrective actions that could be taken to prevent unacceptable adverse effects from the proposed project. The Mississippi Board of Levee Commissioners responded to the consultation notification in a letter dated July 8, 2008, by requesting a 30-day time extension of the final consultation period as well as a meeting with EPA and the Corps. The EPA replied in a letter dated July 10, 2008, granting the project sponsor a fifteen day extension, until August 1, 2008, to provide comments.
On July 22, 2008, the project sponsor submitted initial comments on the Recommended Determination. The major points raised in the letter were also discussed during a meeting held with the Mississippi Board of Levee Commissioners and their counsel on July 25, 2008, at the EPA's Headquarters Offices in Washington, D.C. The Assistant Administrator for Water presided over the meeting, which was also attended by the Assistant Secretary of the Army for Civil Works, EPA Region IV's Regional Administrator for the Section 404(c) action, as well as management, staff, and counsel from EPA and the Assistant Secretary of the Army for Civil Works/ Corps of Engineers Headquarters Offices. During the meeting (and in the July 22, 2008 letter), the project sponsor raised six major points. The one point raised that is relevant to this case concerns whether the EPA lacks the legal authority to invoke Section 404(c) due to Section 404(r) of the CWA.
The EPA subsequently submitted a letter to the Senators on August 6, 2008, stating that while the CRS report provided an accurate description of the meaning of section 404(r), it did not reach a conclusion regarding the applicability of section 404(r) to the proposed project. The EPA then engaged in further consultation with the Corps and the Department of the Army regarding Section 404(r). The EPA reached the same conclusion as it previously did, finding that Section 404(r)'s exemption had not been triggered because there was no evidence that an EIS for the proposed project was ever submitted to Congress prior to either authorization for the project or an appropriation of funds for its construction. In the EPA's Final Determination, it once again reiterated that "the limited exemption established at section 404(r) does not apply to the proposed project." The Board of Mississippi Levee Commissioners ("Plaintiff") appeals the EPA's conclusion regarding the applicability of Section 404(r) to the project at issue in this case.
Summary judgment is warranted under Rule 56(c) when evidence reveals no genuine dispute regarding any material fact, and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when ... both parties have submitted evidence of contradictory facts." Id. In the absence of proof, the court does not "assume that the nonmoving party could or would prove the necessary facts." Id.
The single controversy in this case is whether the Yazoo Area Pump Project
In the EPA's Final Determination, it concluded that Section 404(r) was inapplicable because a Final EIS was never submitted to Congress. Under Section 404(r) of the CWA, a "specifically authorized" Federal project is not subject to regulation when:
33 U.S.C. § 1344(r) (emphasis added). Plaintiff, pointing to the Energy and Water Development Act of 1985, contends that a Final EIS was submitted to Congress before an appropriation of funds for the construction of the Pump Project.
In order to grasp the nature of the March 28, 1983 letters, a close review of the record is necessary. The following is a timeline of relevant dates with respect to the Final EIS and Pump Project issues:
As noted above, there are multiple reports discussed in this case. The three reports that overlap, yet must be treated separately, are: (1) the 1982 Reevaluation EIS, (2) the Post Authorization Report, and (3) the Mitigation Report.
Id. On the same day (March 28, 1983), two identical similar letters were also provided to the Chairmen of the House and Senate Public Works Committees with jurisdiction over the Fish and Wildlife Mitigation Report. This letter stated:
See 3 Compendium 1337, 1338. Plaintiff contends that the letters sent to the Chairmen of the Public Works Committees, that were transmitted "for information," equates to a submission to Congress; thus, invoking Section 404(r). The Court is unconvinced by such an assertion.
The stated purpose of the letters was to transmit a review copy of the Mitigation Report — a separate "project" requiring separate congressional authorization. The Plaintiff has staked its entire case on the fact that the letters also state that a Final EIS was enclosed. Plaintiff reasons that this Final EIS relates to the Pump Project, thus meaning that a finalized EIS was indeed submitted to Congress. While there is no direct evidence concerning this unnamed Final EIS, as it apparently no longer exists, the last paragraph of the letters provides some insight. The letters state that, "upon receipt of comments on the proposed report and environmental statement ... the Chief of Engineers will forward his final report to the Secretary of the Army." (Emphasis added). After receiving comments on the report and the environmental statement, a final report was forwarded to the Secretary of Army on July 12, 1984. The final report related to the Mitigation Plan — the plan to acquire land to mitigate environmentally harmful impacts; it did not concern the specifics of the Pump Project. Thus, if comments were requested and received on an environmental statement, and the final report stemming from those comments related to the Mitigation Plan and not the Pump Project, it logically follows that the environmental statement was not in reference to the Pump Project either.
Moreover, the March 28 letter to the EPA is also instructive. The EPA letter makes clear that a Final EIS and the Pump Project Reevaluation Report were attached. The letter refers to two separate attachments — two separate documents.
More telling, the "Final" EIS referenced in the letters could not have been in relation to the Pump Project because any EIS relating to the Pump Project was yet to be in its "final" stages as of March 1983. In order to qualify for exemption under Section 404(r), the "procedural and substantive" requirements of that section must be satisfied. See COMMITTEE ON PUBLIC WORKS, 95TH CONGRESS, 2D SESSION, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Volume 3 at 529 (Comm. Print 1978). Further, for a project to fall under Section 404(r), an "adequate" EIS must have been
Even assuming the Court viewed the EIS referenced in the March 28, 1983 letters as relating the Pump Project and as being final and adequate, there is no evidence that the EIS was "submitted to Congress" within the meaning of Section 404(r). The Court begins by noting that the CWA does not define the term "submitted to Congress." However, despite this lack of formal definition, the letters fail to meet the Section 404(r) standard. The plain language of the statute requires an EIS to be submitted to Congress as a whole. As the Defendant Intervenors aptly conclude, Congress is well aware of the distinction between a submission "to Congress" and a submission to certain committees.
The mandate contained in Executive Order 12322 also confirms that an EIS was not "submitted to Congress." Executive Order 12322 directs, "Before any agency or officer thereof submits to the Congress, or to any committee or member thereof, for approval, appropriations, or legislative action any report, proposal, or plan relating to a Federal or Federally assisted water and related land resources project or program, such report, proposal, or plan shall be submitted to the Director of the Office of Management and Budget." Exec. Order § 12322, § 1 (Sept. 17, 1981). The Executive Order further provides that, when any such report is "submitted to Congress, or to any committee or member thereof, it shall include a statement of the advice received from the Office of Management and Budget." Id. at § 3. Plaintiff claims that the Executive Order requiring reports be submitted to OMB is inapplicable "on its face." Plaintiff asserts that the EIS was not intended for congressional appropriation or legislative action of any kind. Instead, Plaintiff contends that the EIS was submitted for the sole purpose of "review under Section 404(r)." However, under Section 404(r), it is Congress's duty, as opposed to an agency's, to evaluate and approve the EIS. See COMMITTEE ON PUBLIC WORKS, 95TH CONGRESS, 2D SESSION, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Volume 3 at 503. (Comm. Print 1978) (noting that to safeguard the provisions of the CWA, under Section 404(r), an EIS will be "reviewed and approved by Congress," and that "[a] great deal of responsibility is being places in [Congress] to insure that these Federal projects ... will be conducted in an environmentally safe manner."). This evaluation and approval for Section 404(r) purposes is indeed a "legislative action" on a "report" submitted from an "agency or officer thereof." As Plaintiff's summary judgment motion even noted, Section 404(r) is only triggered by "affirmative
Moreover, the United States House of Representatives has promulgated official rules relating to communications transmitted to the House. Such rules, which were in existence in 1983, provide that all communications "from the executive departments intended for the consideration of any committees of the House be addressed to the Speaker ... for referral to the appropriate committees." Rule XII, clause 8, § 827. Plaintiff, while apparently conceding that the House rules were not followed, states that the March 28 letters were "not intended for the consideration of any particular Committee." However, in the following couple of sentences, Plaintiff goes on to contradict that assertion. Plaintiff states that, "it is only reasonable to assume that an agency would and should send a Section 404(r)-triggering EIS directly to the House and Senate Committees that would have chief interest and jurisdiction over the project." Given this, Plaintiff's assertion that a Final EIS was not intended for consideration by a House Committee makes no sense, especially since the March 28 letters were indeed sent to a Committee. By Plaintiff's logic, an EIS report should only be submitted directly to a particular Committee — as it was in this case — if it was not intended for consideration by that Committee. Such an assertion is entirely illogical. As Plaintiff even points outs, under Section 404(r), it is intended that the "EIS will come before the appropriate committees" and that there will be "a thorough process of Committee review." See COMMITTEE ON PUBLIC WORKS, 95TH CONGRESS, 2D SESSION, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Volume 3 at 534, 503. (Comm. Print 1978). In the House of Representatives, the Speaker refers communications from the executive branch to the appropriate committees. Here, the letters were undisputedly not addressed to the Speaker of the House.
As discussed above, on February 3, 1983, Major General Wall delegated the duty to review and approve the 1982 Reevaluation EIS on the Pump Project to the
The Plaintiff contends that the Corps actually invoked Section 404(r), despite its contention that it did not, due to the Corps' Vicksburg District's Water Resource Policies and Authorities: Application of Federal Regulations Implementing Section 404 to Civil Works Projects (Sept. 18, 1979) ("Vicksburg SOP"). This guidance issued by the Corps' Vicksburg District describes several options that the Corps can utilize to comply with or seek exemption from Section 404 of the CWA. As applicable to the Pump Project, the Vicksburg SOP provided three separate options: (1) "Option B" would allow the Corps to seek a Section 404(r) exemption
Plaintiff next makes a separation of powers argument to support its conclusion that the Pump Project is not subject to a Section 404(c) veto. Plaintiff asserts that Congress intended that it would be the final arbiter under Section 404(r). Due to this, Plaintiff contends that, because funds were appropriated to the Pump Project in the Energy and Water Development Appropriation Bill of 1985, Congress must have viewed, evaluated, and approved a Final EIS related to the Pump Project; thus, making the project exempt under Section 404(r). The Court agrees that Congress as a whole is the final arbiter of an EIS under Section 404(r). However, Plaintiff's argument is inapposite in this case because there is no evidence Congress ever received — much less approved or evaluated — an EIS for the Pump Project. If Section 404(r) was never triggered, a separation of powers issue never arises.
Moreover, even if funds were allegedly appropriated to the Pump Project in the Energy and Water Development Appropriation Bill of 1985, it does not compel the conclusion that Congress received the EIS. Congress, as the legislative body, appropriates funds to a vast majority of federal or federally-assisted projects — projects in which the appropriate agency evaluates the EIS and the Corps issues a permit. Merely because funds flow to a project does not mean every project is exempt from the CWA. If that were the case, compliance with Section 404 of the CWA would never be necessary. The "limited"
For the reasons stated above, the Defendants' Motions for Summary Judgment [38], [41] are GRANTED.
So ordered.
See 2 Compendium 624.
