Mississippi Court Places Hold on Big Sunflower River Project
Sierra Club v. Miss. Dept. of Envtl. Quality, 819 So. 2d 515 (Miss. 2002).

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.

Background
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 mussel species.1

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 Supreme Court.

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

Conclusion
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.

ENDNOTES
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 (Miss. 2002).
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.