Description: Lawsuit asserting that U.S. Army Corps of Engineers and Mississippi River Commission failed to consider and mitigate impacts of opening of spillway on Mississippi River on coastal communities and resources.
Harrison County v. Mississippi River Commission
Filing Date Type File Action Taken Summary 09/13/2021 Memorandum Opinion and Order Download Motion to dismiss granted. Mississippi Federal Court Dismissed Claims Seeking Environmental Review of More Frequent Opening of Spillway. In two related lawsuits, the federal district court for the Southern District of Mississippi dismissed claims under the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA) against the Mississippi River Commission (MRC) and the U.S. Army Corps of Engineers in connection with the operation of the Bonnet Carré Spillway, which is “designed to divert water from the Mississippi River into Lake Pontchartrain in an effort to prevent flooding in the city of New Orleans.” The plaintiffs alleged that the defendants failed to conduct an adequate environmental impact analysis and to supplement the analysis “to reflect the changed circumstances and additional impacts resulting from the greater and more damaging Mississippi River flooding and resulting operation” of the spillway. Over an 89-year period, the spillway had been opened 15 times, with six of the openings occurring in the past 10 years and 4 openings occurring between 2018 and 2020. The court concluded that the MRC did not qualify as an “agency” under the APA because it only had the authority to make recommendations, not to make decisions, and that the plaintiffs therefore could not bring claims against the MRC under the APA. The court also dismissed the APA and NEPA claims against the Corps, finding that some claims were time-barred (e.g., challenges to a 1976 environmental impact statement) and that because there was no remaining “major federal action” it lacked jurisdiction over the claim that supplementation was required. The court also found that it could not compel the Corps to open a separate spillway more frequently. 12/23/2019 Complaint Download Complaint filed. Lawsuit Filed to Compel Corps of Engineers and Mississippi River Commission to Take Action to Mitigate Adverse Impacts of Spillway Releases on Coastal Communities. Three Mississippi cities, two counties, and two organizations representing the Mississippi lodging and tourism and commercial fishing industries filed a lawsuit in the federal district court for the Southern District of Mississippi asserting that the Mississippi River Commission and the U.S. Army Corps of Engineers unlawfully failed to consider impacts to coastal communities and natural resources when they opened the Bonnet Carré Spillway in the spring and summer of 2019. The plaintiffs alleged that the opening of the spillway released “a flood of polluted Mississippi River water through the Lake Pontchartrain Basin and into the Mississippi Sound, wreaking havoc on the natural resources, communities and businesses on the Mississippi Gulf Coast.” The plaintiffs also alleged that the “disastrous” opening of the spillway was “unlikely to be an isolated event,” noting that it had been opened six times since 2008 after having been opened only eight times in the first 70 years of its existence. The complaint said the increase in frequency and volume of the opening was driven by increased flooding and precipitation, and that “[t]his increased precipitation will continue as a consequence of warming temperatures.” The plaintiffs asserted that “absent development of mitigating strategies by the Corps and the Mississippi River Commission, the Bonnet Carré Spillway will continue to open on a basis that will cause ongoing damage to the public resources of coastal Mississippi.” The plaintiffs sought a declaration that the defendants were in violation of the National Environmental Policy Act and the Magnuson Stevens Fishery Conservation and Management Act and asked the court to order the defendants to fully comply with those statutes “with all due haste” and in the interim to require the Corps to consult with and obtain the consent of the plaintiffs and relevant Mississippi authorities regarding measures to avoid and minimize impacts prior to any opening of the spillway. A separate lawsuit asserting violations of the National Environmental Policy Act was filed by the Mississippi Secretary of State and Trustee of the Public Tidelands Trust.