Summary of a Recent
Judicial Development in
Water Law

Army Corps Not Required to Provide Supplemental Environmental
Impact Statement for Grand Prairie Project

L. Paul Goeringer
National AgLaw Center Research Associate

Summary of Decision

In Arkansas Wildlife Federation v. U.S. Army Corps of Engineers, 431 F.3d 1096 (8th Cir. 2005), the Eighth Circuit Court of Appeals held that the Corps was not required under the National Environmental Policy Act (NEPA) to await studies and reports by other agencies and groups before conducting its own cumulative impact analysis. The court also found that the Corp's cumulative impact analysis was adequate and had been properly considered. Finally, the court determined that the proposed changes were not substantial and did not require the preparation of a Supplemental Environmental Impact Statement (SEIS). The Eighth Circuit affirmed the decision of the district court.

Background

The Army Corps of Engineers (Corps) designed the Grand Prairie Project (project), in eastern Arkansas to provide irrigation and preserve the Alluvial Aquifer. Id. at 1099. The Corps issued a draft Environmental Impact Statement (EIS) under NEPA in 1998 for public comment. Id. Due to the public comments received on the EIS, the Corps issued a draft General Reevaluation Report. Id. In 1999, a Final Environmental Impact Assessment was issued, and a Record of Decision was signed in 2000. Id.

In February 2004, the Arkansas Wildlife Federation (AWF) filed suit against the Corps. Id. The AWF claimed that the Corps had failed to comply with NEPA and sought both preliminary and permanent injunctions against the project. Id. Both parties filed motions for summary judgment. Id. at 1100. The Corps, shortly after the suit was filed, issued for comment a draft Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI) for proposed changes in the project. Id. at 1099. In July 2004, it issued a final EA and FONSI for the changes. Id. at 1100.

The district court granted the Corps' motion for summary judgment after finding that the four-year delay in challenging the NEPA assessments was unreasonable and barred by laches. Id. Additionally, the court found that the Corps had complied with the requirements of NEPA, and had adequately considered the cumulative direct and indirect effects of the project. Id. Because the original analysis was adequate, the court found that an SEIS was not required. Id. The AWF promptly appealed to the Eight Circuit. Id.

Arguments

The AWF argued that the cumulative impact analysis performed by the Corps was inadequate, lacked detailed information required by NEPA, and had conclusory findings. Id. at 1101. The AWF also argued that an SEIS was required because the Corps had made substantial changes that were relevant to environmental concerns. Id. at 1102.

The Corps argued that the AWF's failure to appeal the lower court's ruling on laches prevented it from challenging any inadequacies that the cumulative impact analysis may have. Id. at 1100. The Corps also argued that an SEIS was not required because the changes were not substantial and would not have a significant impact on the environment, which the Corps had already considered in its other analysis. Id. at 1102.

Analysis and Holdings

The Eighth Circuit Court of Appeals found the cumulative impact analyses in the Final Environmental Impact Statement (FEIS) and the Final Environmental Analysis (FEA) were adequate under the requirements of 42 U.S.C. § 4332(C), 40 C.F.R. § 1508.25, and 40 C.F.R. § 1508.7. Id. at 1100-01. The AWF argued that the Corps did not analyze the impact of additional projects. Id. at 1101. The AWF alleged that comments made by other governmental agencies and private organizations, which suggested that the Corps should wait for other groups to finish their studies, was evidence that the cumulative impact analysis was not proper. Id. The court found that the Corps had the discretion to decide which comments of other agencies were of value to its analysis under NEPA. Id. The court concluded that the Corps had examined the cumulative impact of the project on numerous existing, pending, and unauthorized projects, and its actions did not violate the "hard look" required under NEPA. Id.

The court disagreed with the AWF's assertion that the cumulative impact analysis was inadequate, lacking detail required under NEPA, and conclusory. Id. The court found that NEPA and the applicable regulations allowed for an agency to tier its Environmental Assessments to Environmental Impact Statements to save time and money, to focus on issues that were ripe for its decision, and to avoid those decisions which had been decided or were not yet ripe for decision. Id. Citing precedent, the court found that "[a]n FEA will be ruled deficient only if it does not include a cumulative impact analysis or is not tiered to an EIS that contains such an analysis." Id. The FEA in question was properly tiered upon an FEIS and provided the Corps with updated and helpful analysis of any new environmental impacts that had arisen. Id. at 1102. The court concluded that the cumulative impact analysis was in compliance with NEPA. Id.

The court also disagreed with AWF as to whether the Corps had improperly deferred on the study of cumulative impacts of reasonably foreseeable action. Again examining precedent, the court found that "[a]n impact is reasonably foreseeable if it 'is sufficiently likely to occur that a person of ordinary prudence would take into account.'" Id. (citing Dubios v. United States, 102 F.3d 1273, 1287 (1st Cir. 1996)). The court found no reason to second guess the Corps, and found that the Corps had taken into account the cumulative impact of future projects and many effects in the region that were not foreseeable. Id. The court again found that the Corps' analysis complied with NEPA. Id.

Finally, the court disagreed with AWF's allegation that the Corps had made such substantial changes to the proposed project that an SEIS was required. Id. An SEIS is required "if the changed plans or circumstances will affect the quality of the human environment in a significant manner . . . not already considered by the federal agency." Id. (citing 40 C.F.R. § 1502.0(c)). The AWF argued that the FEA included six substantial changes that had not previously been considered by the Corps. Id. The court explained that a change is "substantial if it presents a seriously different picture of the environmental impact." Id. (citation omitted). To determine whether the six changes were substantial, the court looked to the previously unconsidered environmental consequences of the changes. Id.

The Corps had already considered the change from canals to pipelines. Id. at 1103. In the draft EA, the Corps had considered the impact of pipelines, and determined that they were less damaging to the environment then canals. Id. The court found "that a reduction in the environmental impact can never trigger the requirement to prepare an SEIS; a reduction in the environmental impact is less likely to be considered a substantial change relevant to environmental concerns than would be an increase in the environmental impact." Id. (citation omitted). Finally, with AWF's argument that new information showed that the water removal would be greater than originally planned and required an SEIS, the court disagreed. Id. The court found that many of the proposed irrigation projects were too speculative to be substantial and to require an SEIS. Id. If the Corps were required to provide an SEIS every time new information came to light, it would bring the system to a halt. See Id. The court found that the Corps did not act arbitrarily or capriciously in not preparing an SEIS, and affirmed the decision of the district court. Id.

The case was decided on December 20, 2005.