Places Hold on Big Sunflower River Project
Sierra Club v. Miss. Dept. of Envtl. Quality, 819 So. 2d 515 (Miss.
S. Beth Windham, 3L
Magnolia Bravo, M.S., J.D.
The Mississippi Supreme Court reversed the Department
of Environmental Quality's (DEQ) grant of certification to the Big Sunflower
River Maintenance Project because the DEQ failed to make adequate findings
or explain the reasoning for its decision. The Court remanded the certification
to the Chancery Court with instructions to forward it to the DEQ for
more findings and analysis.
The Big Sunflower River Maintenance Project (Big Sunflower) is a channeling
project proposed by the U.S. Army Corps of Engineers (Corps) to alleviate
flooding in the Yazoo-Mississippi Delta, which occurs every one to five
years. The Corps estimates that Big Sunflower will result in a six-inch
reduction in water level and affect approximately 56,000 acres of the
Big Sunflower River Basin. Big Sunflower is expected to have a significant
impact on rivers, streams, wetlands, and wildlife in the areas within
the basin, including the dredging of over 100 miles of stream and the
clearing of over 28 miles of several rivers. Project critics note that
Big Sunflower will render 443 acres of forested wetlands unfit for their
current uses, and 552 acres of forested wetlands will face alterations
in flood patterns resulting in the drainage of the areas. In addition
to damage to the land, Big Sunflower will destroy approximately 43%
of mussel beds in the affected areas, adversely affecting endangered
Under the Clean Water Act (CWA), a state has the authority to review
federally permitted projects such as Big Sunflower to determine if they
will affect the state's water quality.2
When the Corps permitted the project, it certified that it did not degrade
Mississippi's waters and initially, the DEQ agreed and granted water
quality certification. The Sierra Club then filed suit challenging the
DEQ's certification of the project. The Chancery Court upheld the certification,
but the Mississippi Supreme Court reversed, requiring the agency to
make adequate findings of fact and disclose the reasoning behind its
decision. In 2002, the Chancery Court granted a rehearing on the case,
finding that DEQ had adequately considered all necessary factors.3
The Sierra Club appealed the Chancery Court's decision to the Mississippi
Water Quality Analysis
The Sierra Club argued the DEQ failed to adequately consider several
factors before granting water quality certification, including feasible
alternatives to the project, mitigation, impact on Mississippi waters
and the compliance history of the Corps. The DEQ certified the project
without considering these impacts and without properly determining whether
the Corps planned to take adequate measures to prevent unreasonable
degradation and irreparable harms to Mississippi waters.4
The court reviewed the DEQ's analysis relying on a previous holding
that "it is a logical and legal prerequisite to intelligent judicial
review . . . that the Board favor us with more than mere conclusory
findings on each of these issues, together with a summary of the grounds
for these findings."5
Feasible alternatives to the activity. The Environmental Protection
Agency (EPA) and Fish and Wildlife Service (FWS) proposed a non-structural
alternative to the project, which the Corps rejected as being too costly
and ineffective. The Sierra Club contended that the Corps used faulty
land values in its calculation of cost and demonstrated that the alternative
would actually cost less than the proposed project. Nonetheless, the
DEQ adopted the Corps' conclusions without explaining why. Relying on
previous case law in which the court vacated an order of the State Oil
and Gas Board for failure to make findings of fact and explain its decision-making,
the court noted it could not review the case unless the DEQ adequately
explained its findings and the reasons behind them.
Mitigation. The DEQ recognized the impact the project would have
on waterfowl, wetland, terrestrial and aquatic resources, but found
the Corps would adequately minimize these adverse impacts. The court
noted the Corps did not specify what impacts were expected and how they
would affect particular species and the environment and also declined
to list exactly what mitigation measures the Corps considered. Again,
the court determined the DEQ must make further findings before it could
review the certification.
Impact on Mississippi waters. The court also found the DEQ failed
to supply findings on the degree of physical, chemical and biological
impacts the project would impose on state waters. While the DEQ did
acknowledge considerable impacts, it did not "discuss what changes
in chemical levels may be expected in the water or in the soil, or in
aquatic and terrestrial life that depend on them, what species of plant
and animal life may be affected, and to what extent, long term effects
on wildlife populations. . . ."6 The
court decided DEQ must also analyze this factor on remand.
Compliance history of the applicant. The court stated that the
DEQ made no findings regarding the Corps' record of mitigation and therefore
the court required the DEQ to analyze the Corps' compliance history.7
The Court found the DEQ failed to make detailed findings of fact and
analysis in granting certification to Big Sunflower. It vacated the
judgment of Hinds County Chancery Court and the DEQ's order and remanded
the case to the DEQ for reconsideration and further findings and analysis.
1. For a discussion of the court's first Big Sunflower Project decision,
see Nowell, Sierra Club Challenges the Big Sunflower River Project,
21:2 Water Log 1 (2001).
2. The Corps certifies a project if it finds that the project will not
unreasonably degrade or cause irreparable harms to a state's waters.
Some factors used to grant or deny certification are the feasibility
of alternatives to the project, physical, chemical, and biological impacts,
and alteration to the ecosystem. See 16 U.S.C. § 1341 (2002).
3. While the case was on appeal, the Mississippi Legislature changed
the jurisdiction of water quality certifications from the DEQ to the
Permit Board. In reviewing the case, however, the court determined the
DEQ, rather than the Permit Board, was responsible for correcting any
deficiencies in the determination.
4. The Department routinely denies certification when one of the following
criteria are met: the activity will alter the aquatic ecosystem and
violate water quality or fail to support an existing use, there is a
feasible alternative that has less adverse affect on water quality,
the proposed activity negatively impacts waters containing threatened
or endangered species, the activity adversely affects unique habitat,
the activity adds to other activities to result in adverse cumulative
impacts, there is a failure to propose non-point source and storm water
management practices, there is a denial of state wastewater permits,
or the proposed activity significantly impacts the environments, which
may adversely impact water quality.
5. Sierra Club v. Miss. Dept. of Envtl. Quality, 819 So. 2d 515, 517
6. Id. at 524.
7. The court did rule that the DEQ had adequately addressed certain
impacts on water quality, specifically pesticides, turbidity, suspended
solids, and low dissolved oxygen. Despite the adequate analysis of these
impacts, the court still held that, overall, the DEQ did not make enough
detailed findings of fact and analysis to support the certification.