Watson v. U.S. Army Corps of Engineers

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.

–