The plaintiffs say money spent on the Corps’ unwanted widening and lock replacement project would be better spent fortifying Louisiana’s fragile coastline, rather than trashing it by dumping contaminated, dredged sediment, as the Corps plans to do.
Joining as co-plaintiffs are the Gulf Restoration Network, the Louisiana Environmental Action Network, Citizens against Widening the Industrial Canal and the Sierra Club.
The Army Corps of Engineers was enjoined in 2006 from doing its lock replacement project on the Industrial Canal until it complied with the National Environmental Policy Act.
In defiance of the judge, the plaintiffs say, the Corps is doing the project without complying with NEPA. The Corps plans to dredge at least 3 million cubic yards of sediment and dump a lot of it into nearby Bayou Bienvenue, in the wetlands of Lake Pontchartrain.
The Corps admitted in its March 2005 Supplemental Environmental Impact Statement that its dumping of sediment into the bayou would “violate applicable water quality criteria and a waver would be required,” according to the complaint.
The plaintiffs say they have a legally protected interest in the environment where they live, which will be hurt by the Corps’ dumping contaminated sediments.
The court ruled in 2006 that the Corps would have to dump its contaminated sediment into a state-certified landfill.
The court also found that the Corps had failed to “adequately address the risks of flooding and hurricanes in general,” and left “no way to know what environmental impacts” its dumping of dredged material into a bayou would have on the ecosystem.
The Corps issued a supplemental environmental impact statement in 2009, which also failed to address the risks of flooding and hurricanes, according to the complaint. The plaintiffs say the Corps still refuses to consider the “reasonable dredging and disposal alternatives” to contaminating the bayou.
The Corps claims it is widening the Industrial Canal to “reduce or eliminate delays in navigation” and to “avoid environmental impacts to the maximum extent possible.”
The plaintiffs suggest the Corps make the Industrial Canal a shallow-draft lock, which would require dredging and disposal of 1.5 million cubic yards of material, rather than the 3 million cubic yards required for a deep-draft lock.
The Corps agreed that a shallow lock “produces the greatest net benefits over cost of any of the plans considered in detail” and that it is a “socioeconomically and environmentally acceptable plan,” but claimed, falsely, that “from the standpoint of impact analysis, locks of various sizes at a given location, and for a given construction scenario, produce very similar impacts,” and decided to build the deep-draft lock, the plaintiffs say.
But the Corps did not take into account the impact of dumping the dredge material in wetlands, according to the complaint.
The Port of New Orleans preferred the large lock.
The complaint adds that “the project has not been fully funded for years and the President’s current budget proposal withholds all funding for the project.” (Italics as in complaint.)
The plaintiffs say that if the project were funded, it would “divert money from projects necessary to safeguard the residents and coastal resources of southeast Louisiana.”
They claim that the Corps 2009 supplemental impact statement did not consider any of the shallow-draft lock alternatives.
The Corps issued a Record of Decision on May 20, 2009, approving the deep-draft lock.
The Corps recommended the deep-draft lock be constructed off-site, in wetlands along the Mississippi River Gulf Outlet, and will dredge 664,000 cubic yards from the off-site construction area, plus 876,000 cubic yards for a bypass channel at the lock site, and 1.1 million cubic yards from the lock footprint.
The project is not included in the 2010 federal budget or the president’s proposed budget for fiscal year 2011.
The Corps’ plan to dump the dredged material in the Mississippi River “is – in essence – a decision to dispose of contaminated material behind a berm in Louisiana’s wetlands,” the complaint states. And the Corps has not even bothered to determine the concentrations of pollutants it will dump with the sediment.
But the plaintiffs say that without knowing the concentration of pollutants, it is impossible to know the environmental impact the project will have.
The National Environmental Policy Act “provides that all agencies of the federal government shall … include [all] major federal actions significantly affecting the quality of the human environment, [and] a detailed statement by the responsible official.” The proper process helps public officials make decisions “based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.”
The environmental impact statement must “rigorously explore” and evaluate all reasonable alternatives and discuss the reasons for eliminating an alternative.
Congress passed the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters,” and the Act defines dredge spoil as a “pollutant.”
The Corps’ environmental impact plan is incomplete and does not explain why the Corps chose an environmentally unsound plan when less harmful solutions are readily available, according to the complaint.
Plaintiffs want construction enjoined, and costs. They are represented by Adam Babich of the Tulane Environmental Law Clinic.
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