J.c. Coker, Iii, et al., Plaintiffs-appellees,mississippi Wildlife Federation, Intervenor/plaintiff-appellee, v. Col. Francis R. Skidmore, in His Official Capacity Asdistrict Engineer, Vicksburg District, U.S. Armycorps of Engineers, et al., Defendants-appellants,board of Mississippi Levee Commissioners and Board of Leveecommissioners for the Yazoo Mississippi Delta,intervenors/defendants-appellants, 941 F.2d 1306 (5th Cir. 1991)

Col. Francis R. Skidmore and all other defendants ("Appellants")¹  appeal from an order of the district court enjoining construction of a levee on the Yazoo River and the condemnation of associated lands until such time as the U.S. Army Corps of Engineers ("Corps") prepares a supplemental Environmental Impact Statement ("EIS") covering the levee construction. Coker v. Skidmore, 744 F. Supp. 121, 126 (S.D. Miss. 1990). Because we find that the district court failed to apply Council on Environmental Quality ("CEQ") requirements for preparation of a supplemental EIS, we reverse and vacate the injunction.

Facts and Procedural History

The facts are largely undisputed. This case concerns the requirements under the National Environmental Policy Act ("NEPA") for construction by the Corps of approximately 5.4 miles of levee along the Yazoo River in Mississippi, as part of the Upper Yazoo portion of the Yazoo River Basin Flood Control Project ("Project"). The Project covers 13,400 square miles in northwest Mississippi. In 1975, the Corps prepared a programmatic final EIS for the Project. The Project as a whole consists of three separately authorized components: the Yazoo Backwater Area Project, the Big Sunflower River Basin Project, and the Yazoo Headwater Project. The Upper Yazoo Projects ("UYP") is a subproject of the Yazoo Headwater Project. One component of the UYP is Item 3A-2, which contemplates approximately 7.2 miles of channelization work and 5.4 miles of levee work on a portion of the Yazoo River. The proposed levee would prevent major river overflow at the City of Belzoni, Mississippi.

On May 29, 1990, J.C. Coker, III ("Coker"),²  a private landowner whose property would be condemned for construction of the levee, filed a complaint for declaratory and injunctive relief. Coker's complaint alleged that the Corps had violated NEPA in failing to issue a supplemental EIS as to Item 3A-2.³  Prior to trial, on July 24, 1990, the Corps issued a final Environmental Analysis ("EA") and concluded with a draft Finding of No Significant Impact ("FONSI") as to the levee portion of Item 3A-2. Prior to that time, the Corps had stated its plans to prepare a supplemental EIS for the channelization portion of Item 3A-2 and also all other uncompleted portions of the Yazoo Headwater Project. The FONSI concluded, as to the levee, that a supplement to the final EIS was not required.

The parties agreed to forego a hearing on the plaintiffs' motion for a preliminary injunction and went to trial on the merits.⁴  On September 4, 1990, the district court issued an order enjoining the Corps from constructing the levee and condemning associated lands prior to preparation of a supplemental EIS for the remaining uncompleted portions of the Project, including the levee. The district court found that the Corps had not improperly separated, or segmented, the levee from the channelization because the levee could exist apart from the channelization. The court also determined that while "there is no evidence before the Court of a significant environmental impact from the levee itself," nevertheless the procedural requirements of NEPA would not be satisfied until a supplemental EIS on the remaining uncompleted portions of the Project and an environmental evaluation of the levee was complete. 744 F. Supp. at 125-26. The district court based this holding on its conclusion that Skidmore had admitted that the original EIS was outdated.⁵  The district court enjoined construction of the levee pending preparation of a supplemental EIS. Appellants appeal the injunction issued by the district court.

Discussion

NEPA requires federal agencies proposing major federal acts significantly affecting the quality of the human environment to prepare an EIS. 42 U.S.C. § 4332(2) (C). The Corps prepared an EIS for the Project in 1975. An EIS is a detailed statement by the responsible official concerning, among other things, the environmental impact of the proposed action. Id.

The CEQ issues regulations governing compliance with NEPA by federal agencies. 40 C.F.R. § 1500.1 et seq. The CEQ regulations provide that, in deciding whether to prepare an EIS, a federal agency must initially determine whether the proposed action is one that either (1) normally requires the preparation of an EIS or (2) is categorically excluded. 40 C.F.R. § 1501.4(a). If the proposed action falls into neither category, the agency must prepare an EA to determine whether there is a significant potential impact to the environment which would necessitate the preparation of an EIS. 40 C.F.R. § 1501.4(b). If a significant impact is indicated, an EIS must be prepared. If no significant impact is found, a FONSI is issued by the agency. 40 C.F.R. § 1508.13.

When a series of related actions is planned by an agency, the agency may choose one of two alternatives: (1) the preparation of a single programmatic EIS for the entire series of projects, or (2) division of the actions with preparation of a separate EIS, EA, or FONSI for each action. Because some projects are too large to complete at one time and must be divided into parts, an agency can rely upon tiering.⁶  Appellants contend that the Corps can rely upon tiering to avoid preparation of an EIS on the levee based upon the original 1975 programmatic EIS and the issuance, pursuant to the EA, of a FONSI regarding the levee.

According to the district court, if the Corps has a valid programmatic EIS, it may rely on tiering as to the levee. The district court found, however, that the 1975 EIS was outdated and therefore invalid. The central question before it, determined the district court, was whether an EIS can become so outdated that it can no longer provide the foundation upon which a subpart, such as the levee, can be tiered. 744 F. Supp. at 125. The district court answered in the affirmative.

The issue before this court is not whether an EIS can become outdated, but whether the 1975 EIS in the instant case was insufficient so as to require the preparation of a supplemental EIS before construction of the levee.

CEQ regulations state that an agency must supplement an EIS if:

i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or

ii) There are significant⁷  new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

40 C.F.R. § 1502.9(c).⁸  Corps regulations provide, in relevant part, that " [a] supplement to the draft or final EIS on file will be prepared whenever significant impacts resulting from changes in the plan or new significant impact information, criteria or circumstances relevant to environmental considerations impact on the ... proposed action." 33 C.F.R. § 230.11(b).

The Corps issued a FONSI based on its EA concluding that the levee would not cause significant environmental impacts and that a supplement for the extant EIS was not required. The district court apparently agreed with the FONSI, holding that "there is no evidence before the Court of the possibility of a significant environmental impact from the levee itself." 744 F. Supp. at 125-26.

A reviewing court will not set aside an agency decision not to supplement an EIS under NEPA unless the decision was "arbitrary and capricious." See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S. Ct. 1851, 1860-61, 104 L. Ed. 2d 377 (1989). The district court held that the Corps' decision "not to supplement the EIS was arbitrary and capricious, given that by Defendants' own admission substantial portions of the 1975 EIS are outdated." 744 F. Supp. at 125.

This court reviews the district court's review of the Corps' decision de novo, inasmuch as it involves the district court's conclusions of law concerning the sufficiency of the EIS. See In re Fredeman Litigation, 843 F.2d 821, 824 (5th Cir. 1988); Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1177 (9th Cir. 1990); Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1422 (9th Cir. 1989), amended, 899 F.2d 1565 (9th Cir. 1990). We find that the district court erred in holding that the Corps' decision not to supplement the EIS before commencing construction of the levee was arbitrary and capricious. The district court did not make the findings necessary to support an order requiring a supplemental EIS as to the levee under the Corps or CEQ regulations. A court may only order the preparation of a supplemental EIS if "there are significant new circumstances ... relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c); cf. 33 C.F.R. § 230.11(b). The district court did not make such a finding, and it is not implicit in the court's opinion. Cf. Fritiofson v. Alexander, 772 F.2d 1225, 1248 (5th Cir. 1985). To the contrary, the district court found that there was "no evidence ... of the possibility of a significant environmental impact from the levee itself." 744 F. Supp. at 125-26.

In determining whether the Corps' decision not to prepare a supplemental EIS was "arbitrary and capricious," the district court " 'must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Marsh, 490 U.S. at 378, 109 S. Ct. at 1861 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823-24, 28 L. Ed. 2d 136 (1971)). Inasmuch as the district court essentially restated the critical assessment of the Corps' FONSI, the Corps made no clear error of judgment, and the district court erred in subsequently finding the Corps' decision arbitrary and capricious.

The district court held that compliance with NEPA requires the Corps to update the "outdated" EIS. 744 F. Supp. at 126. An EIS need not be supplemented whenever new information concerning a project comes to light. See Marsh, 490 U.S. at 373, 109 S. Ct. at 1859.⁹  Nor need the Corps update an EIS when portions of it become out-of-date. Cf. Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 1036 (2nd Cir. 1983) ("mere passage of time rarely warrants an order to update the information to be considered by the agency"). CEQ regulations only require a supplemental EIS if there are "significant new circumstances" that arise concerning the levee. See 40 C.F.R. § 1502.9(c) (1); cf. 33 C.F.R. § 230.11(b) ("significant impacts"). The district court did not make a finding of "significant new circumstances," and in fact explicitly found no possibility of a significant environmental impact. 744 F. Supp. at 125-26. Absent the findings required by the CEQ regulations, the district court erred in requiring the preparation of a supplemental EIS.¹⁰ 

Inasmuch as the district court and the Corps agree on the basic conclusion of the Corps' FONSI, that the levee presents no possibility of significant environmental impact, issuance of the injunction was improper. Construction of the levee should no longer be delayed.

Conclusion

For the foregoing reasons the district court's order enjoining construction of the Item 3A-2 levee and condemnation of associated lands is VACATED. The mandate shall issue forthwith.