Bd of MS Levee Commissioners v. EPA, et al

Filing

PUBLISHED OPINION FILED. [11-60302 Affirmed ] Judge: CDK , Judge: JLW , Judge: CH Mandate pull date is 04/27/2012; denying motion to supplement the record on appeal or, in the alternative, for judicial notice. filed by Appellant Board of Mississippi Levee Commissioners [6831941-3] [11-60302]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
March 6, 2012

No. 11-60302

Lyle W. Cayce
Clerk

BOARD OF MISSISSIPPI LEVEE COMMISSIONERS,
Plaintiff - Appellant
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LISA P.
JACKSON, in her official capacity as Administrator; NANCY STONER, in
her official capacity as Acting Assistant Administrator for Water,
Defendants - Appellees
MISSISSIPPI WILDLIFE FEDERATION; NATIONAL WILDLIFE
FEDERATION; ENVIRONMENTAL DEFENSE FUND; SIERRA CLUB;
GULF RESTORATION NETWORK; AMERICAN RIVERS,
Intervenor Defendants - Appellees

Appeal from the United States District Court
for the Northern District of Mississippi

Before KING, WIENER, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
The Board of Mississippi Levee Commissioners (the “Board”) appeals the
district court’s decision granting summary judgment to the Environmental
Protection Agency (“EPA”), Lisa P. Jackson, Nancy Stoner, the Mississippi
Wildlife Federation, Sierra Club, Environmental Defense Fund, Gulf Restoration
Network, and American Rivers (collectively, “Appellees”), on the Board’s claim
that the EPA improperly exercised its power to veto a plan to reduce flooding in

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Mississippi, called the Yazoo Backwater Area Pumps Project (the “Pumps
Project” or “Project”). Specifically, the Board claims that the EPA was barred
from vetoing the Project under section 404(r) of the Clean Water Act (the “Water
Act”), 33 U.S.C. § 1344(r).

The Board contends that because all of the

requirements of section 404(r) were met, the EPA could not have lawfully vetoed
the Project. In response—and for the first time on appeal—the EPA claims that
the Board does not have prudential standing to contest the EPA’s decision.
Additionally, the Board moved to supplement the record on appeal or, in the
alternative, for this court to take judicial notice of a Fish and Wildlife Mitigation
Report that was not before the district court.
As an initial matter, we DENY the Board’s motion to supplement the
record on appeal or, in the alternative, for judicial notice. In addition, we
conclude that the EPA waived its argument that the Board does not have
prudential standing under the Administrative Procedure Act (“APA”). We
AFFIRM the district court’s decision upholding the EPA’s veto, as the record
does not contain sufficient evidence to overturn the EPA’s findings.1
I. BACKGROUND AND PROCEDURAL HISTORY
To adequately understand this dispute, it is necessary to provide a brief
overview of the complex statutory framework, as well as a history of Congress’s
legislation related to the Pumps Project.
A.

Overview of the Water Act and the National Environmental Policy Act
(the “Environmental Act”)
1.

Water Act

Congress enacted the Water Act “to restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
To achieve this purpose, Congress made “the discharge of any pollutant by any

1

Both sides also present non-legal arguments as to why their position is correct. The
Appellees argue that the Project will be devastating to the environment, and the Board argues
that without the Project, flooding will continue to devastate the area. Congress, not this court,
is the best place to resolve these policy disputes.

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person . . . unlawful,” 33 U.S.C. § 1311(a), unless the discharge complies with
section 404 of the Water Act. Under section 404, the Corps must generally issue
a permit before any such discharge occurs, see 33 U.S.C. § 1344(a); however,
when the Corps is the sponsor of the project, it need not issue itself a permit, but
it must comply with section 404(b)(1). See 33 U.S.C. § 1344(b)(1); 33 C.F.R.
§ 336.1. Section 404(b)(1) of the Water Act requires the Secretary of the Corps
to apply guidelines developed jointly by the EPA and the Corps. 33 U.S.C.
§ 1344(b)(1).
Section 404(r) was added in 1977, and it provides that the discharge of
dredged or fill material is not subject to certain provisions of the Water
Act—including the requirements imposed by section 404—if:
information on the effects of such discharge, including consideration
of the guidelines developed under subsection (b)(1) of this section
[404] is included in an environmental impact statement for such
project pursuant to the National Environmental Policy Act of 1969
and such environmental impact statement has been submitted to
Congress before the actual discharge of dredged or fill material in
connection with the construction of such project and prior to either
authorization of such project or an appropriation of funds for such
construction.
33 U.S.C. § 1344(r). The purpose of this subsection was to prevent an executive
agency from nullifying a project that was specifically authorized by Congress, “in
recognition of the constitutional principle of separation of powers.” Monongahela
Power Co. v. Marsh, 809 F.2d 41, 51 n.92 (D.C. Cir. 1987).
2.

Environmental Act

As noted above, to satisfy section 404(r), the environmental impact
statement (“EIS”) that is transmitted to Congress must comply with the
Environmental Act. 33 U.S.C. § 1344(r). The Environmental Act requires that
when an agency proposes a “major Federal action[] significantly affecting the
quality of the human environment,” the agency must prepare an EIS that
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documents the environmental impact of the proposed action and provides other
alternatives as a comparison. 42 U.S.C. § 4332(2)(C). The EIS must include an
analysis of: (1) “the environmental impact of the proposed action”; (2) “any
adverse environmental effects which cannot be avoided should the proposal be
implemented”; (3) alternatives to the proposed action; (4) “the relationship
between local short-term uses of man’s environment and the maintenance and
enhancement of long-term productivity”; and (5) “any irreversible and
irretrievable commitments of resources which would be involved in the proposed
action should it be implemented.” Id. § 4332(2)(C)(i)-(v).
The Council on Environmental Quality, which has been given authority
to promulgate regulations applicable to the federal agencies, has set out the
process for preparing an EIS. The regulations provide that an EIS is prepared
in two stages: draft and final. See 40 C.F.R. § 1502.9. Both the draft and final
versions of the EIS must be circulated to other federal agencies which have
jurisdiction or special expertise in the area; federal, state, or local agencies
“authorized to develop and enforce environmental standards”; any individual
who requests a copy of the EIS; and, in the case of a final EIS, anyone who
submitted comments on the draft. Id. § 1502.19(a), (c), (d). The agency must
also respond to all substantive comments, id. § 1503.4(a), and prepare a Record
of Decision at the time of its decision, id. § 1505.2.
B.

Legislation Related to the Pumps Project
Congress has enacted several statutes designed to help control flooding

from the Mississippi River. Congress passed the Flood Control Act of 1928,
which authorized a system of levees to help control flooding from the Mississippi
River. See FLOOD CONTROL ACT OF 1928, 45 Stat. 534, 33 U.S.C. § 701 et seq. In
1941, the Mississippi River Commission presented a report recommending that
the Yazoo Backwater Area be protected from flooding by extending a levee along

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the west bank of the Yazoo River. FLOOD CONTROL ON THE LOWER MISSISSIPPI
RIVER, H. R. Doc. No. 77-359, at 38 (1941). However, the report concluded that
because extending the levees would cause drainage problems along the
Sunflower River, additional steps would have to be taken to protect this area.
Id. It proposed three plans, see id. at 39-41, but Congress authorized “Plan C”
set out by the Mississippi River Commission. FLOOD CONTROL ACT OF 1941, Pub.
L. No. 77-288, 55 Stat. 638. Plan C “assume[d] that pumps of about 14,000 cubic
feet per second capacity would be provided to prevent the sump level from
exceeding 90 feet, mean Gulf level . . . .”2 FLOOD CONTROL

ON THE

LOWER

MISSISSIPPI RIVER, supra, at 38.
C.

Timeline of Agency Efforts Related to the Pumps Project
Activity did not begin on the Project until the late 1950’s due to World War

II and the Korean War. The Corps reevaluated Plan C in 1959 and concluded
that a pumping plant was no longer needed.

In 1978, the Corps again

reevaluated the Project and proposed modifying Plan C to drain acreage below
80 feet (instead of 90 feet, as Congress authorized in 1941). Four years later, it
issued a Reevaluation Report, in which it recommended that the sump level not
exceed 80 feet and proposed installation of a “17,500-cubic-feet-per-second
pumping station . . . .” U.S. Army Corps of Engineers, Yazoo Area Pump Project,
Reevaluation Report – Environmental Impact Statement (July 1982). The
Reevaluation Report purported to contain a “final” EIS.3 Together with the 1982
Reevaluation Report, the Corps also published a Post-Authorization Change
Report, which was written to determine if the Corps needed Congress’s

2

The sump level is the level above which water would not be allowed to rise in the
event of a flood. In this case, the pump would be activated when the water rose above 90 feet,
mean Gulf level.
3

Although the EIS is described as “final,” the parties heavily dispute whether this EIS
was actually “final” pursuant to the Environmental Act.

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authorization in order to implement the changes made in the 1982 Reevaluation
Report/EIS.

The Post-Authorization Change Report stated that “[t]he

recommended plan will provide flood protection to those additional lands which
have been converted to agricultural production since initial authorization.” U.S.
Army Corps of Engineers, Yazoo Area Pump Project Post Authorization Change
Notification Report (July 1982, revised November 1982). Major General John
Wall of the Corps delegated authority to the Mississippi River Commission to file
the EIS in this case on February 2, 1983.
The Corps also prepared a Fish and Wildlife Mitigation Report concerning
the Project to comply with the Fish and Wildlife Coordination Act of 1958. This
report, along with a “Final Environmental Impact Statement with addendum”
and the “Project Reevaluation Report” were circulated with a request for
comments on March 28, 1983.
Also on March 28, 1983, a member of the Corps sent two identical letters
to Representative James J. Howard, Chairman of the Committee on Public
Works and Transportation, and Senator Robert T. Stafford, Chairman of the
Committee on Environment and Public Works, which read as follows:
A copy of the proposed report of the Chief of Engineers on Yazoo
Backwater Project, Mississippi – Fish and Wildlife Mitigation
Report, and other pertinent reports and a Final Environmental
Impact Statement, with addendum, are enclosed for your
information. . . . Upon receipt of comments on the proposed report
and environmental statement from the States of Mississippi and
Louisiana and appropriate federal agencies, the Chief of Engineers
will forward his final report to the Secretary of the Army.
Letter from James W. Ray, Colonel, Corps of Engineers, to Hon. James J.
Howard, Chairman, Committee on Public Works and Transportation, U.S. House
of Representatives (Mar. 28, 1983) [hereinafter “Howard Letter”]; Letter from
James W. Ray, Colonel, Army Corps of Engineers, to Hon. Robert T. Stafford,
Chairman, Committee on Environment and Public Works, U.S. Senate (Mar. 28,
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1983) [hereinafter “Stafford Letter]. Both parties agree that the attachments to
the letters are not in the administrative record.
On July 7, 1983—several months after the letters to the congressmen were
sent—the Mississippi River Commission signed a Record of Decision approving
the 1982 Reevaluation Report, which included the EIS. A member of the Corps
sent the Record of Decision to various state and federal agencies and officials.
Additionally, as the letters promise, the Chief of Engineers transmitted his
final report on the Mitigation Plan to the Secretary of the Army “for
transmission to Congress” on July 12, 1984. Because of the nature of the
mitigation plan, which included a recommendation that the government
purchase 6,500 acres of land to “mitigate” the impact of the Project, it was
apparently determined that congressional approval would be necessary.
Congress authorized the Mitigation Plan in the Water Resources Development
Act of 1986, Pub. L. No. 99-662, 100 Stat. 4082. However, there is no evidence
that a similar transmission occurred with respect to the “final” EIS.
After the Record of Decision was signed by the Mississippi River
Commission, construction on the Project began in 1986. Construction was soon
halted by passage of the Water Resources Development Act of 1986, § 103(e)(1),
Pub. L. No. 99-662, 100 Stat. 4082, which required the local project sponsors to
share in the costs of construction. Construction effectively ceased until the cost
sharing provision was reversed in 1996, restoring the project to being fully
funded by the federal government.
Between 1998 and 2000, the EPA focused on attempting to reduce the
environmental impact of the Project. In 2000, because a significant time had
elapsed since the previous environmental study, the Corps determined that it
must update its analysis of the environmental impact of the Project pursuant to
the Environmental Act. The Corps developed a Draft Reformulation Report and
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a supplemental EIS in 2000, which proposed revising the Project (again) to
revert to a 14,000 cubic-feet-per-second pumping station that would drain
acreage below 87 feet. Between 2002 and 2005, the EPA worked with the Corps
to try to reduce the impact of the Project on the environment. The EPA
remained opposed to the Project when the Reformulation Report and the
supplemental EIS were released as final in November 2007.
On February 1, 2008, the EPA’s Region IV Administrator informed the
Corps and the Board of its intent to review the Project pursuant to section 404(c)
of the Water Act. After meeting with the Corps, the Board, and the Fish and
Wildlife Service on February 29, 2008, the EPA published a proposed
determination in the Federal Register. See Proposed Determination To Prohibit,
Restrict, or Deny the Specification, or the Use for Specification, of an Area as a
Disposal Site; Yazoo River Basin, Issaquena County, 73 Fed. Reg. 14806 (Mar.
19, 2008). A public comment period was held from March 19 to May 5, 2008, and
the EPA held a hearing on April 17, 2008. During this time, Senator Thad
Cochran of Mississippi and Mississippi Governor Haley Barbour urged the EPA
to stop the 404(c) process.
After the public comment period, the EPA’s Regional Administrator signed
the Recommended Determination, which initiated a period of review and final
action by the EPA. Both the Board and the Corps commented on the EPA’s
Recommended Determination, as did Representative James Oberstar (who was
concerned about the environmental impact of the Project), and Senators Thad
Cochran and Roger Wicker (who argued that the EPA had no authority to veto
the Project pursuant to section 404(r) and provided an analysis of section 404(r)
done by the Congressional Research Service). The Fish and Wildlife Service
supported the EPA’s Recommended Determination. Based on the comments
received and its own conclusions regarding the adverse environmental impacts
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of the Project, the EPA formally vetoed the Project in August 2008. See Final
Determination of the U.S. Environmental Protection Agency’s Assistant
Administrator for Water Pursuant to Section 404(c) of the Clean Water Act
Concerning the Proposed Yazoo Backwater Area Pumps Project, Issaquena
County, Mississippi (Aug. 31, 2008), available at http://water.epa.gov/
lawsregs/guidance/cwa/dredgdis/upload/2008_09_02_wetlands_Yazoo_Final_D
etermination_Signed_8-31-08.pdf [hereinafter “Final Determination”].
In the Final Determination, the EPA set out its reasoning as to why it
viewed section 404(r) as inapplicable. Specifically, it found that the “EPA has
no evidence that an EIS for the proposed project was ever submitted to Congress,
let alone before the actual discharge of dredged or fill material in connection
with the construction of the project occurred, and prior to either authorization
of the project or an appropriation of funds for construction.”

Id. at 16.

Additionally, the EPA noted that
even if the Final EIS had been submitted to Congress, the
information and analysis it contained were not adequate to satisfy
section 404(r). The purpose of providing the EIS to Congress is to
ensure that Congress has the full information on the environmental
impacts of the project before making a decision whether or not to
authorize the project or to appropriate funds for its construction.
EPA’s comments on both the 1982 Draft EIS as well as the Final
EIS note the deficiencies in [Environmental Act] documentation. .
..
Id. at 18-19. Thus, for this and other reasons, the EPA formally decided that
section 404(r) did not apply to the Project, and therefore concluded that it had
veto authority under section 404(c).
The Board filed suit against the EPA on August 11, 2009, alleging that the
EPA did not have authority to veto the Project pursuant to section 404(r). Both
parties filed motions for summary judgment below. Both parties rely on the
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documents in the administrative record. Based on these documents, the district
court granted summary judgment to the EPA, concluding that the EPA’s veto
was not unlawful because the record did not contain evidence that the EIS for
the Pumps Project was submitted to Congress. The district court entered a final
judgment for the EPA on March 28, 2011, and the Board timely appealed.
II. STANDARD OF REVIEW AND JURISDICTION
We review a grant of summary judgment de novo, applying the same
standard as the district court. Gen. Universal Sys. v. HAL Inc., 500 F.3d 444,
448 (5th Cir. 2007). Under the APA, a federal court may only overturn an
agency’s ruling “if it is arbitrary, capricious, an abuse of discretion, not in
accordance with law, or unsupported by substantial evidence on the record taken
as a whole.” Buffalo Marine Servs. v. United States, 663 F.3d 750, 753 (5th Cir.
2011) (internal quotation marks and citation omitted). We must start from “‘a
presumption that the agency’s decision is valid, and the plaintiff has the burden
to overcome that presumption by showing that the decision was erroneous.’” Id.
(quoting Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir. 2010)).
The agency’s factual findings are reviewed only to determine if they are
supported by substantial evidence, and the agency’s legal determinations are
reviewed de novo. Id. (citing Alwan v. Ashcroft, 388 F.3d 507, 510-11 (5th Cir.
2004)).

With respect to questions of statutory interpretation, we owe

“substantial deference to an agency’s construction of a statute that it
administers.” Id. at 753-54 (internal quotation marks and citation omitted). We
must be “‘highly deferential to the administrative agency whose final decision
is being reviewed.’” Id. at 754 (quoting Tex. Clinical Labs, Inc., 612 F.3d at 775).

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The district court had jurisdiction pursuant to 28 U.S.C. § 1331 (federal
question jurisdiction) and 5 U.S.C. §§ 702 and 704 (jurisdiction under the APA).
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
III. DISCUSSION4
A.

Whether the Board has prudential standing to claim that the EPA
improperly vetoed the Pumps Project because the Project was exempt
under section 404(r) of the Water Act.
In its appellate brief, the EPA raises—for the first time on appeal—the

question of whether the Board has prudential standing to challenge the EPA’s
decision to veto the Project. It argues that the Board seeks to assert the legal
rights of the Corps, and the Board has no legal right to have the Project
completed. The Board argues that the EPA waived its prudential standing
argument, as it failed to raise it before the district court.
Unlike constitutional standing, prudential standing arguments may be
waived. See, e.g., Ensley v. Cody Res., Inc., 171 F.3d 315, 320 (5th Cir. 1999)
(finding a prudential standing argument waived). Although the EPA correctly
points out that we have previously considered the issue sua sponte, see Nat’l Solid

4

The Board seeks to supplement the appellate record or have us take judicial notice
of the Fish and Wildlife Mitigation Report. We have generally declined to supplement the
appellate record with materials not presented to the district court, though we have the
discretion to do so. Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984). Here, we
conclude that consideration of the Mitigation Report is unnecessary to resolve the issues on
appeal, and allowing supplementation would only serve to further undermine the general rule
that a party may not add documents to the record that were not presented to the district court.
Id. at 405 n.3. Similarly, we decline to take judicial notice of this report, as we have previously
determined that a party may not avoid the rule against supplementing the record with a
document not before the district court by requesting that the appellate court take judicial
notice of the document. See United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir. 1995)
(noting that requests for the Court to take judicial notice of evidence not presented to the
district court “constitute[] an impermissible attempt to supplement the record on appeal”);
Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981) (refusing to take
judicial notice after rejecting an attempt to supplement the record on appeal).

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Waste Mgmt. Ass’n v. Pine Belt Reg’l Solid Waste Mgmt. Auth., 389 F.3d 491, 498
(5th Cir. 2004), we decline to do so here. Because the EPA failed to make this
argument to the district court, we hold that the EPA waived its prudential
standing challenge.
B.

Whether the statutory requirements of section 404(r) were met, such that
section 404(r) bars exercise of the EPA’s authority to veto the Project.
The following requirements must be met under section 404(r): (1) the

project at issue must be specifically authorized by Congress; (2) an EIS that
satisfies the Environmental Act and section 404(b)(1) must be submitted to
Congress; and (3) the EIS must be “submitted to Congress before the actual
discharge of dredged or fill material in connection with the construction of such
project and prior to either authorization of such project or an appropriation of
funds for such construction.” 33 U.S.C. § 1344(r). At the administrative level,
the EPA made a factual finding that it possessed “no evidence that an EIS for the
proposed project was ever submitted to Congress . . . .” Final Determination,
supra, at 16. We review the EPA’s finding only to ensure that it is “supported by
substantial evidence.” Buffalo Marine Servs., 663 F.3d at 753.
The Board argues that all three conditions were met and, thus, the EPA
unlawfully vetoed the Project. We conclude that the Board failed to show that an
EIS that satisfied the Environmental Act and section 404(b)(1) of the Water Act
was submitted to Congress. Therefore, we find it unnecessary to address the
Board’s remaining arguments related to section 404(r).
To overcome the presumption that the EPA’s factual finding should be
upheld, the Board argues that the 1983 letters to Representative James J.
Howard and Senator Robert T. Stafford are evidence that the EIS for the Project
was “submitted to Congress.” However, the EIS that was allegedly submitted to
Representative James J. Howard and Senator Robert T. Stafford as an
attachment to the letters does not exist in the administrative record. The letters
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do not specify that the “final EIS” relates to the Project, and although it would be
reasonable to infer that the EIS to which the letters referred related to the
Project, it is also plausible that it did not. These two ambiguous letters, without
further evidence that the EIS prepared for the Project was transmitted to
Congress, are insufficient to show that the EPA’s decision that section 404(r) does
not apply is erroneous. See Buffalo Marine Servs., 663 F.3d at 753.
Additionally, even if we were to find that the letters showed that the EIS
for the Project was included as an attachment, there is no evidence in the record
to show that the EIS complied with guidelines developed pursuant to section
404(b)(1) of the Water Act or with the Environmental Act. The district court
concluded, and we agree, that it is unlikely that the “final EIS” mentioned in the
letters—even if it was the EIS related to the Project—was actually “final” under
the regulations. Certainly it is not so likely that we must overturn the EPA’s
contrary finding.
The regulations provide that an agency that prepares an EIS must file the
EIS and comments and responses with the EPA. 40 C.F.R. § 1506.9. It must also
circulate the draft and final EIS to federal agencies that have jurisdiction with
respect to any environmental impact involved; other federal, state or local
agencies “authorized to develop and enforce environmental standards”; “[a]ny
person, organization, or agency requesting the entire environmental impact
statement”; and “any person, organization, or agency which submitted
substantive comments on the draft,” that may submit comments. Id. § 1502.19.
The agency must then address comments received on the draft EIS in the final
EIS. Id. § 1503.4. The regulations also require that the agency prepare a Record
of Decision stating the agency’s decision and discussing the agency’s
consideration of alternatives. Id. § 1505.2. The Record of Decision may not be

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issued until at least 30 days after publication of a notice that the final EIS is
available. Id. § 1506.10(b)(2).
The Board vehemently disagrees that an EIS is not “finalized” until after
comments on the final EIS are received and until the Record of Decision is signed.
It argues that the Record of Decision “determines what the decisionmaker will
do based on the finalized EIS.” However, it cites to a letter sent in July
1983—several months after the letters on which the Board relies—from the
Mississippi River Commission to the EPA stating that the Record of Decision was
forwarded “[t]o complete procedural compliance with the National Environmental
Policy Act following final review of the Final Environmental Impact Statement
for the Yazoo Area Pump Project.”

Letter from Joseph Yore, Secretary,

Mississippi River Commission, to Paul Cahill, Director, Office of Federal
Activities of the EPA (July 18, 1983). Contrary to the Board’s argument, this
letter supports the district court’s conclusion and the EPA’s argument that a
Record of Decision is required to finalize an EIS under the Environmental Act.
Additionally, the 1983 version of the regulation related to the Record of
Decision provided that the “Record of Decision will be completed to document the
Corps [sic] final decision or recommendation to Congress on a proposed action
requiring an EIS.” 33 C.F.R. § 230.12 (1983)5; see also 40 C.F.R. 1505.2 (noting
that “[a]t the time of its decision (§ 1506.10) or, if appropriate, its
recommendation to Congress, each agency shall prepare a concise public record
of decision” (emphasis added)). This regulation indicates that the agencies
believed that a Record of Decision was necessary when providing a
“recommendation to Congress on a proposed action requiring an EIS.” 33 C.F.R.
§ 230.12.

5

Other than this citation to the 1983 version of the Code of Federal Regulations, all
other citations to the regulations are to the current version.

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Although the letters were dated March 28, 1983, the EPA did not submit
comments on the final EIS until May 1983, and it did not issue a Record of
Decision until July 1983. These facts support a finding that although the EIS
existed in March 1983 and was called a “final EIS,” that EIS did not comply with
the regulations issued pursuant to the Environmental Act, as required by section
404(r), until the Record of Decision was signed in July 1983. The Board admits
that “the Corps’ then-current [Environmental Act] Procedures provided that the
Corps headquarters or the district engineer must respond to comments on final
EISs [sic] (such as EPA’s May, 1983 comments . . .)[.]” Indeed, the letters relied
upon by the Board expressly state that the environmental review process was
still underway, noting that “[u]pon receipt of comments on the proposed report
and environmental statement from the States of Mississippi and Louisiana and
appropriate federal agencies, the Chief of Engineers will forward his final report
to the Secretary of the Army.” Howard Letter, supra; Stafford Letter, supra.
Based on the regulations and the EPA’s interpretation of them, which is
entitled to deference, see Talk America, Inc. v. Mich. Bell Tel. Co., 131 S. Ct.
2254, 2261 (2011), we conclude that even if an EIS related to the Project was sent
to Congress in March 1983, the EPA’s conclusion that it was not “final” should
not be set aside as no Record of Decision had been signed until after the letters
were sent. Further, as discussed above, the letters themselves indicate that the
EIS was not final at the time it was allegedly transmitted.
Additionally, the Corps—the agency that was responsible for sending the
letters in March 1983—indicated that it did not intend to seek an exemption
pursuant to section 404(r) for the Project. See Letter from John Paul Woodley,
Jr., Assistant Secretary of the Army, to Hon. Thad Cochran, U.S. Senate (Feb. 10,
2009). This conclusion is supported by the fact that the Corps sought and
obtained a water quality certification from the State of Mississippi. Had the

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Case: 11-60302

Document: 00511779353

Page: 16

Date Filed: 03/06/2012

No. 11-60302
Corps intended to seek an exemption under section 404(r), it would have also
been exempt from the requirement of obtaining a state water quality certificate
pursuant to section 401 of the Water Act. See 33 U.S.C. § 1344(r). The record
contains a document from the Corps’ Vicksburg District detailing its Standard
Operating Procedures. See U.S. Army Corps of Engineers, Water Resource
Policies and Authorities: Application of Federal Regulations Implementing
Section 404 to Civil Works Projects (Sept. 18, 1979). This document sets out
three options for the Corps to meet its obligations under section 404: (1) seek an
exemption pursuant to section 404(r) as part of the authorization process; (2)
obtain a state water quality certification pursuant to section 401; or (3) seek an
exemption under section 404(r) after authorization by submitting an EIS to
Congress. The record demonstrates that the Corps pursued the second option,
as it sought a state water quality certification under section 401. Additionally,
after the Corps revised the Project in 2007, it again sought a state water quality
certification. The Corps’ interpretation of section 404 shows that it would
either have to seek an exemption under 404(r) or comply with section 401. The
fact that it instead sought a state water quality certification indicates that the
Corps did not believe that section 404(r) applied. Additionally, this document
demonstrates that the Corps was aware of the process for seeking a section 404(r)
exemption and that, had it intended to do so, it would have followed the Standard
Operating Procedures.
Because the administrative record fails to show that an EIS that satisfied
the Environmental Act and section 404(b)(1) was submitted to Congress, we find
it unnecessary to address the remaining requirements of section 404(r). For the
foregoing reasons, we affirm the district court’s decision to grant summary
judgment to the EPA.
AFFIRMED; MOTIONS DENIED.

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