Judge Approves Mississippi River Control Plan, Warns Attorneys

In a January 22 ruling, a judge in the United States District Court for the Southern District of Illinois handed the Corps of Engineers a victory when he granted summary judgment in the Corps’ favor in a lawsuit over Mississippi River training structures. The judge’s ruling also granted final approval for Corps plans for a 195-mile section of the Mississippi River from St. Louis, Mo., to Cairo, Ill. 

The suit, titled National Wildlife Federation vs. United States Army Corps of Engineers, was filed in May 2020 by attorneys representing the National Wildlife Federation, American Rivers, Prairie Rivers Network, Missouri Coalition for the Environment and Great Rivers Habitat Alliance. It challenged the Corps’ Supplemental Environmental Impact Statement for the Regulating Works Project. The Regulating Works Project guides the Army Corps’ management of the section of the Mississippi River stretching from St. Louis to Cairo. The plaintiffs sought injunctive relief, namely the revocation of the Environmental Impact Statement that approved the project. 

The plaintiffs argue that the Corps’ use of river training structures, like dikes and weirs, increases flood risk and degrades the river habitat. They also claimed that by approving an environmental review of the project, the Corps violated laws, including the Rivers and Harbors Act of 1927, that, they claimed, forbid the construction of training structures that narrow the river to less than 2,000 feet, because “doing so destroys the river’s natural meanders and side-channel habitat diversity and decreases the channel’s capacity to handle high flows, resulting in more frequent and severe flooding.”

Melissa Samet, the National Wildlife Federation’s senior water resources counsel, said in a statement in response to the ruling, “This decision is deeply disappointing, and we continue to believe the Corps did not fulfill its legal requirement to fully assess how ‘river training structures’ can greatly alter flow patterns within a river, harming wildlife and increasing flood risks for communities. Moving forward, we urge the Army Corps to fulfill its legal duty to assess alternative solutions that will prevent these harms while allowing navigation to proceed. Given the increased flood risks posed by our changing climate, the Corps should be reducing flood risks to communities, not taking actions that are known to increase those risks.”

Jared Opsal, executive director of the Missouri Coalition for the Environment, said, “MCE continues to believe the Corps did not fulfill its legal requirement to completely assess how river training structures may immensely alter flow patterns within a river, which can increase flood risks for river communities. With climate change increasing flood risks along the river, we wish for the Corps to focus on reducing these risks to communities, not taking actions that will likely increase those risks.”

At the time the suit was filed, American Rivers, one of the plaintiffs, named the Upper Mississippi as America’s Most Endangered River for 2020 because of the “urgent threat of flooding and climate change.” “The Army Corps’ outdated approaches threaten community safety and river health,” according to Olivia Dorothy, Upper Mississippi Basin director for American Rivers.

Warns Attorneys 

The plaintiffs themselves had requested summary judgment in February 2021. Summary judgment is requested when there’s no material dispute among the parties over questions of fact. The plaintiffs claimed that river-training structures used by the Corps, like weirs and dikes, worsen flooding risk. 

Judge David Dugan did more than grant summary judgment. He reprimanded the plaintiff’s attorneys and threatened them with sanctions for misleading the court, according to a report in the Madison/St. Clair Record.  The judge’s comments referred to how attorneys cited the various acts and laws they claimed the Corps violated, as well as the conclusions of a review panel. Dugan claimed they selectively cited, misquoted and misrepresented language in them, including the Water Resources Development Act, and accused the attorneys of a lack of candor.