Sierra
Club Challenges the Big Sunflower River Project
Mississippi Sierra Club, Inc. v.
Mississippi Department of Environmental Quality, 2001 Miss.
LEXIS 97 (2001).
Roy A. Nowell, Jr., 3L
In April, the Mississippi Supreme Court ruled that the Mississippi
Commission of Environmental Quality (Commission) failed to make
proper findings when it granted certification for a proposed
project of the U.S. Army Corps of Engineers (Corps). The certification
of the Big Sunflower River Maintenance Project was challenged
by the Mississippi Sierra Club (Sierra Club) because of its
impact on hundreds of acres of wetlands and streams. The certification
was affirmed by the Hinds County Chancery Court. The Sierra
Club appealed to the Mississippi Supreme Court where the lower
court ruling was vacated, and the issues remanded to the Commission
for further findings.
Background
The Big Sunflower River Maintenance Project is a channeling
project proposed by the U.S. Army Corps of Engineers to alleviate
flooding in the Yazoo-Mississippi Delta, which occurs every
one to five years. The Corps estimates that the Project will
result in a six-inch reduction in water level and affect approximately
56,000 acres of the Big Sunflower River Basin. The Project is
expected to have a significant impact on a tremendous number
of rivers, streams, wetlands, and wildlife in the areas within
the basin, including the dredging of over 100 miles of stream
and the clearing of over 28 miles of several rivers. According
to the court, “the project is expected to cause significant,
unavoidable negative impacts on waterfowl, terrestrial, wetland,
and aquatic resources, including loss of flood plane [sic],
riverbank, and fisheries habitat as well as loss of benthic
organisms that live in the sediment and form the foundation
of the aquatic food chain.”1 It is estimated
the Project will render 443 acres of forested wetlands completely
unfit for their current uses, and it is believed 552 acres of
forested wetlands will face alterations in flood patterns resulting
in the drainage of the areas. In addition to damage to the land,
approximately 43% of mussel beds in the affected areas will
be destroyed, adversely affecting endangered mussel species.
The Corps filed its application for water quality certification
of the Project with the Mississippi Department of Environmental
Quality (MDEQ) in August of 1996. After a recommendation from
the Chief of Water Quality Management, the Com-mission voted
seven to one to certify that the Project complies with the Mississippi
Air and Water Pollution Control Law. The Sierra Club filed suit,
challenging the certification.
Analysis
When considering an application for water quality certification,
the Commission must address numerous factors set out in federal
and state permits, Water Quality regulations, and Water Quality
Certification measures. The Sierra Club argues that the Commission
failed to adequately address several of these factors, including
a balanced assessment of alternatives to the Project, the mitigation
of the environmental effects of the Project, the physical, chemical
and biological impacts associated with the Project and the Corps’
record of compliance with mitigation conditions. The Sierra
Club raised three issues:
1. Whether the Commission correctly
applied the factors of Mississippi’s Water Quality Regulations;
2. Whether the Commission certified
the Project without adequate assurance that measures will be
taken to prevent unreasonable and irreparable harm to Mississippi
waters; and,
3. Whether the Project violates
the Water Quality Criteria for impaired waters.
Standards and McGowan Analysis
In 1992, the Mississippi Supreme Court addressed the standards
that must be met by an agency so that the court may properly
review certification decisions. In McGowan v. Mississippi State
Oil & Gas Bd., the court vacated an order of the State Oil
and Gas Board for failing to make adequate findings of fact
and for failing to disclose the reasoning behind its decision.2
In McGowan, the court expressly stated an agency must state
the reasoning behind its decisions and make adequate findings
of fact concerning necessary standards.3 The court
held that, in order for courts to review an agency’s decision,
the agency should not only provide conclusory findings, but
should also provide the basis for these findings.4
Under McGowan, the order of the Commission certifying the Big
Sunflower River Maintenance Project was deficient on the following
points:
•Feasible alternatives to the Project: The Commission made
only conclusory statements indicating that suggested alternatives
to the Project would be cost prohibitive and would not accomplish
the purpose of alleviating flooding. The court held that the
order should include the “articulated reasoning” upon
which the certification decision was based and without finding
of fact and explanation, the certification does not meet the
McGowan standard.
•Mitigation Requirements: The mitigation proposed by the
Corps included the reforestation of 1,912 acres of agricultural
land subject to frequent flooding. The Commission determined
the proposed mitigation was sufficient to minimize any adverse
effects resulting from the proposal, but failed to adequately
specify what adverse effects were expected and how the mitigation
was expected to minimize or prevent these effects. The Commission
simply made a conclusory statement that was deemed insufficient
by the court to satisfy McGowan requirements.
•Physical, Chemical and Biological Impacts: In its order,
the Commission notes that there will be “significant unavoidable
impacts” related to the Project but fails to discuss those
impacts or the details for addressing the impacts. The court
again finds the Commission’s certification fails to meet
the McGowan standards.
•Compliance History: Compliance rate is the degree to which
a particular agency has complied with prior mitigation requirements,
but no findings were made by the Commission to determine the
level of compliance by the Corps. The Sierra Club provided evidence
indicating the Corps had a relatively poor record of compliance
with mitigation requirements. Testimony from the Corps’
Project Manager revealed a compliance rate of only 30%, including
the failure to purchase thousands of acres of required mitigation
lands. The Commission offered no findings to contradict the
arguments offered by the Sierra Club, and the court ruled the
Commission must address the Corps’ compliance history in
making certification decisions.
Unreasonable Degradation and Irreparable Harm
Secondly, the Sierra Club argues that the Commission failed
to determine whether the Project would cause unreasonable degradation
and irreparable harm to state waters. Under Mississippi’s
Water Quality Law, before certification is issued the Commission
must consider what harm will occur and must be assured by the
applicant that steps will be taken to prevent unreasonable harm.
The court ruled there was no evidence that the Commission actually
reviewed the measures proposed by the Corps, as it is required
to do under Mississippi law. The court remanded this issue to
the Commission for further analysis.
Mississippi Water Quality Criteria
Finally, the court addressed the issue of whether the Project
would violate Mississippi Water Quality criteria for impaired
waters within the state. Because the waters are already classified
as impaired, the Commission required the Corps to take core
samples and to monitor the effects of dredging on bottom pesticides
and other sediment. The Commission decided that the waters would
not be degraded beyond current water quality conditions. However,
the court determined that the Commission failed to provide sufficient
details regarding the standards and ordered the issue placed
back before the Commission for further findings.
Conclusion
In sum, the court ruled the Commission failed to offer findings,
details, and explanations relating to their decisions regarding
required standards. The Commission simply reported their decision
to approve the Big Sunflower River Project without providing
the reasoning those decisions were based upon. Using the standards
set forth in McGowan, the court remanded the case to the Commission
for further findings consistent with this opinion and the McGowan
standards. The outcome of this case will potentially impact
other commissions in the State, such as the Commission on Marine
Resources.
ENDNOTES
1. Mississippi Sierra Club, Inc. v. Mississippi Department of
Environmental Quality, 2001 Miss. LEXIS 97 (2001).
2. McGowan v. Mississippi State Oil & Gas Board, 604 So.
2d 312 (Miss. 1992).
3. Id. at 323.
4. Id.
