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TAYLOR BAY PROTECTIVE ASSN. v. RUCKELSHAUS

May 17, 1988

Taylor Bay Protective Association, Calvin Covington, Morgan William Berry, Edward C. Fitzhugh and Bay Fitzhugh, Plaintiffs
v.
William D. Ruckelshaus, In His Official Capacity as Administrator, United States Environmental Protection Agency, Dick Whittington, In His Official Capacity as Regional Administrator, Region VI, U.S. Environmental Protection Agency, Village Creek and White River Levee District of Jackson County, Arkansas, Mayberry Levee District of Jackson County, Arkansas, John O. Marsh, Jr., In His Official Capacity as Secretary of the Army, U.S. Army Corps of Engineers, and Lt. Colonel Larry S. Bonine, In His Official Capacity as District Engineer, Little Rock Corps of Engineers, Defendants



The opinion of the court was delivered by: HOWARD, JR.

 GEORGE HOWARD, JR., UNITED STATES DISTRICT JUDGE.

 This proceeding was instituted by the Taylor Bay Protective Association (Association), a non-profit corporation, incorporated for the purpose of restoring and improving the "environment [and the] quality of Taylor Bay in order to provide the public a high-quality recreation area" in Woodruff County, Arkansas. Plaintiffs, Morgan William Berry and Bay Fitzhugh, are members of the Association.

 Defendants, Village Creek and White River Levee District of Jackson County, Arkansas, and Mayberry Drainage District of Jackson County, are improvement districts (Improvement Districts). Improvement Districts are jointly responsible for the operation and maintenance of a pumping station in issue in this proceeding as more fully described and discussed hereinafter.

 Federal defendants are Anne Gorsuch and her successor, past and present administrators of the United States Environmental Protection Agency; Dick Whittington, Regional Administrator of the United States Environmental Protection Agency, Region VI; John O. Marsh, Jr. and successor, Secretary of the Army; Larry S. Bonine, District Engineer, Little Rock District of Corps of Engineers. In essence, the case involves a flood control project authorized by the United States Government in Jackson and Woodruff Counties, Arkansas, known as the Village Creek, White River and Mayberry Levee Districts Pumping Station and Drainage Ditch Project (Village Creek Project).

 The following issues are to be resolved:

 
A. Whether the United States Army Corps of Engineer (Corps) violated the National Environment Policy Act (NEPA) by not preparing an Environmental Impact Statement (EIS) with reference to the construction of the Village Creek project.
 
B. Whether the Corps violated the Fish and Wild Life Coordination Act in failing to consult with the United States Fish and Wildlife Service (FWS) in the construction of the project.
 
C. Whether plaintiffs are entitled to relief against the Corps for the alleged failure to require local sponsor (Improvement Districts) of the project to acquire sump or ponding area for the project.
 
D. Whether the discharge from the leveed area into Taylor Bay constitutes a common law nuisance warranting relief against Improvement Districts under Arkansas law. *fn1"

 BACKGROUND INFORMATION

 Taylor Bay is a water course connected to the White River north of the Town of Augusta within Woodruff County, Arkansas. *fn2" Taylor Bay prior to 1970, was the principal recreation resource within Woodruff County, Arkansas, as well as adjoining counties. These outdoor recreational activities included fishing, hunting, water skiing, boating and picnicing.

 The Watershed of Taylor Bay prior to 1940, consisted of the Taylor Slough Watershed and contained approximately 40 square miles. In 1940, the northern 27.5 square miles of Taylor Slough Watershed was enclosed within a levee. The levee also enclosed the Mill Creek Watershed which consisted of 22.2 square miles north of the Taylor Bay Watershed. Another Watershed, the Drummond Lake Watershed, consisting of 2.2 square miles in the northern portion of the leveed area, was also enclosed within the levee. *fn3" At the time of the enclosure of the area in 1940, interior drainage of Mill Creek and Taylor Slough was provided through the installation of concrete box culverts with electrically operated slide gates. Each culvert measured 8 feet by 8 feet. Two of these culverts were located where Mill Creek drained through the levee into the White River and three of these culverts were located in the levee on Taylor Slough. During flooding or high water on the White River, when gravity drainage could not occur, the culverts were closed to prevent a backflow of water from the White River and Taylor Slough into the leveed area. Aside from constructing levees, other projects undertaken by the United States Government and the Improvement Districts, in an effort to eliminate the adverse effects of flooding, included raising, enlarging and correcting levees and extending them to higher ground, establishing drainage ditches and culverts in the area in order to expedite drainage, through the various watersheds into the White River. However, despite these numerous projects, interior flooding continued to cause damage to the agriculture lands within the leveed areas. Consequently, during the latter part of the 1950's, the Corps studied various proposals for additional flood control work. The Corps recommended two plans to the United States Congress to cope with the flooding problem. The Corps, essentially, recommended, first, which has been characterized as Plan I, that further clearing and enlarging of the then-existing channels and additional excavation for new channels in certain areas be undertaken. Secondly, the Corps recommended, which has been characterized as Plan II, the work suggested in Plan I and further recommended the construction of 180,000 gallon per minute pumping station to facilitate drainage from Taylor Slough into Taylor Bay during periods of high water. The Corps also discussed a proposal designated as Plan III, but did not recommend Plan III to Congress which included the work set forth in Plan I and provided for the construction of a 300,000 gallon per minute pumping station.

 Congress authorized Plan I in the River and Harbor Act of July 14, 1960, Pub. L. No. 86-645, 74 Stat. 480, but did not make a decision on the pumping station. However, the Corps was directed to re-study the proposal under Plan III. On August 24, 1962, following a re-study of Plan III, the Corps submitted its revised plan to Congress and Congress authorized the revised project in the Flood Control Act of 1962, Pub. L. No. 87-874, 76 Stat. 1173.

 In June of 1963, the revised project design plan was completed and titled "White River Watershed-Village Creek, White River and Mayberry Levee Districts in Jackson and Woodruff Counties, Arkansas". The Corps approved the project in March, 1966, and the project was named "White River Watershed-Village Creek, White River and Mayberry Levee District in Jackson and Woodruff Counties, Arkansas, Pumping Station and Drainage Project."

 While construction in the leveed area was taking place, a supplement to the project design plan was prepared by the Corps pursuant to a new 1968 study to determine the capacity of Big Bay and Little Bay to contain drainage from the project area. In this study, the Corps recommended eighteen cross sections runs through Little Bay from the southern culverts to the upper end of Big Bay for the purpose of studying outlet channel conditions. The results of the study indicated that Big Bay, which resembles a lake during high river stages, had the capacity to contain any expected flow from the project. However, the Corps recommended that an area of approximately 2.3 miles of the channel in Little Bay which lies below the proposed pumping station needed to be cleared because of the existence of brush, large trees which was a narrow area and was a hindrance to good drainage because of the lack of sufficient capacity to accommodate water during flooding. The clearing project was completed sometime in July, 1971.

 DISCUSSION

 I. VIOLATION OF THE NATIONAL ENVIRONMENT POLICY ACT

 Title 42 U.S.C. ยง 4332 provides in relevant part:

 
. . . (2) All agencies of the federal ...

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