Petition for Writ of Certiorari — Roanoke River Basin Ass'n v. Hudson
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9l- 84 Buoreme Court, U.S,
BEQRD No. _C PILED
Lt NOV 12 1998
IN THE | OFFICE OF THE CLERK
Supreme Court of the Gnited States
October Term, 1991
ROANOKE RIVER BASIN ASSOCIATION
and STATE OF NORTH CAROLINA,
Petitioners,
COLONEL RONALD E. HUDSON, in his official capacity as
Norfolk District Engineer, THE CITY OF VIRGINIA BEACH
VIRGINIA,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Patrick M. McSweeney Lacy H. Thornburg
Counsel of Record Attorney General
Michael V. Hernandez Alan S. Hirsch
McSWEENEY, BURTCH Special Deputy
& CRUMP, P.C. Attorney General
Post Office Box 1443 N.C. DEPT. OF JUSTICE
11 South Twelfth Street Post Office Box 629
Richmond, VA 23212 Raleigh, NC 27602
(804) 783-6800 (919) 733-5725
Counsel for Petitioner Counsel for Petitioner
Roanoke River Basin State of North Carolina
Association
Appellate Printing Services * 523 East Main Street * Richmond, VA 23219 * (800) 642-7789
QUESTIONS PRESENTED FOR REVIEW
I. Is the Corps of Engineers ("the Corps")
required to explain how its mitigation condition will
eliminate the environmental effects of a proposed project
when it relies om: mitigation to avoid preparing an
Environmental Impact Statement (EIS)?
II. Is the Corps required in a National
Environmental Policy Act (NEPA) case to make information
on which it relies available for public review and comment
before it makes a decision not to prepare an EIS?
III. Is the Corps required to provide a complete
explanation of a computer model on which it has relied once
substantial questions about the model have been raised?
IV. Has the Corps improperly interpreted and
applied binding regulations of the Council on Environmental
Quality which govern whether an EIS must be prepared?
LIST OF PARTIES BELOW
APPELLANTS-PLAINTIFFS: Roanoke River Basin
Association and State of North Carolina.
PLAINTIFFS: Counties of Bertie, Granville, Halifax,
Martin, Northampton, Vance, Warren & Washington, North
Carolina; Counties of Charlotte, Halifax & Mecklenburg,
Virginia.
APPELLEES-DEFENDANTS: Ronald E. Hudson, in his
official capacity as Norfolk District Engineer; Wayne A.
Hanson, in his official capacity as Wilmington District
Engineer; Joseph K. Bratton, Lieutenant General, in his
official capacity as the Chief of Engineers of the United
States Army Corps of Engineers; William R. Gianelli, in his
official capacity as Assistant Secretary of the United States
Department of the Army; John O. Marsh, in his official
Capacity as Secretary of the United States Department of the
Army; and the City of Virginia Beach, Virginia.
ll
Uesiee
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ...... i
LIST OF PARTIES BELOW ........2seeees ii
TABLE OF AUTHORITIES ............... Vii
OPINIONS DELIVERED IN THIS CASE
Pe BPeee MPP CPU ow ce tt tt ee ]
GROUNDS UPON WHICH THE JURISDICTION
OF THIS COURT IS INVOKED ....\4........ l
STATUTES AND REGULATIONS
INVOLVED IN THIS CASE ............... 2
SrAlemen: Of THE CASE ..........2.2-. 2
I. CE 2
A. The Roanoke River System .. 3
B. Albemarle-Roanoke Striped
a aa Re 7
Il. Nature Of The Case And Prior
as Soo as os + 9 + 2 12
REASONS FOR GRANTING THE WRIT ...... 24
ill
Il.
III.
IV.
The Opinion Below Is In Error And In
Conflict With Decisions Of The Ninth
Circuit Regarding The Need To
Explain Specifically How Mitigation
Will Eliminate Potentially Significant
Environmental Impacts. .........
The Opinion Below Is In Error And In
Conflict With The Rule Adopted By
This Court That Critical Information
On Which The Agency Relies Must Be
Made Available For Review And
Comment Before The Agency Makes
DA kek ee oe ee ee
The Opinion Below Is In Error And In
Conflict With Decisions Of The
District Of Columbia Circuit
Requiring Agencies to Provide A
Complete Analytical Defense Of
Modeling Which Has_ Been
a ee
The Opinion Below Is In Error And In
Conflict With Decisions Of Other
Courts of Appeals Implementing The
CEQ Regulations Which Govern
Whether An EIS Must Be Prepared.
A. Controversy --
40 C.F.R. § 1508.27(b)(4)
B. Uncertainty --
40 C.F.R. § 1508.27(b)(5)
1V
26
38
44
49
C. Cumulative Impacts --
40 C.F.R. §§ 1508.7
& 1508.27(b)(7) .......
(A ek eee hee ee eae sess
APPENDIX A
R iV i lation v :
940 F.2d 58 (4th Cir. 1991) .............
APPENDIX B
State of North Carolina v. Hudson,
731 F. Supp. 1261 (E.D.N.C. 1990) .......
APPENDIX C
Order dated February 2, 1990,
State of North Carolina v. Hudson,
No. 84-36-CIV-5 (E.D.N.C. 1990) ........
APPENDIX D
State of North Carolina v. Hudson,
665 F. Supp. 428 (E.D.N.C. 1987) ........
APPENDIX E
Order dated July 7, 1987,
State of North Carolina v. Hudson,
No. 84-36-CIV-5 (E.D.N.C. 1987) ........
APPENDIX F
ie EO © is 0 0 a kek oe 8 es Heo
APPENDIX G
P.L. 100-589, 102 Stat. 2984 (1988)
Lie | Ne er yer e ae ae
APPENDIX H
DAT OEE see bicsseccececvene 165a
APPENDIX I
8 ee a ee 166a
APPENDIX J
ar ae arr 167a
APPENDIX K
oS a er 168a
APPENDIX L
Co 8 169a
oY i er 169a
Co Rs a 170a
vi
TABLE OF AUTHORITIES
Alabama Power Co. v. Costle,
GO Fae eee Cais Ss BT ct ee et ae 38
567 F.2d 1016 (D.C. Cir. 1977), cert. denied,
Ge CES. Goa caeendecceceneacs 38
wman Tran ion Vv
Arkansas-Best Freight System, Inc.,
a 34
Oj F Virinia Beact k ke Ri
Basin Association, 776 F.2d 484 (4th Cir. 1985) ... 15
Conner v, Burford, 848 F.2d 1441 (1988),
cert, denied, 489 U.S. 1012 (1989) ........... 46
Eagle-Picher Industries v. U.S. EPA,
tae Cee ee ea Ee RO See et te 38
Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) ... 34, 39
Foundation for North American Wild Sheep v.
U.S. Dept. of Agriculture,
681 F.2d 1172 (th Cir. 19962) .........26- 45, 50
Foundation on Economic Trends v. Heckler,
587 F. Supp. 753 (D.D.C. 1984),
aff'd in part, vacated in part on other grounds,
Fae Cae Be Ga Ss BD bc vee ee ee 47, 50
Fritiofson v. Alexander, 772 F.2d 1225 (1985) .... 52
Vil
Gee v. Hudson, 746 F.2d 1471, 22 ERC 1213
(4th Cir. 1984) cert. denied, 471 U.S. 1058 (1985) .. 54
ing Fi mv midt,
626 F.2d 1068 (Ist Cir. 1980) .............. 37
Hanly v. Kleindienst,
471 F.2d 823 (2d Cir. 1972),
cert. denied, 412 U.S. 908 (1973) .......... 43, 52
Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986) 27, 45, 50
LaFlamme v. FERC, 852 F.2d 389 (1988) .. 27, 44, 53
ee Wame ERE Ge Gs SD gw ke ce ee 43
Marsh v. Oregon N R r ncil,
Se ee I cc cue e eee ce anees 35, 37
McLouth Steel Prod. Corp. v. Thomas,
oer Gk ee oe re 34 _
Minnesota Public Interest Research Group v. Butz,
ra 43
National Wildlife Federation v, Marsh,
568 F. Supp. 985 (D.D.C. 1983) ........... 34, 37
Natural Resources Defense Council, Inc. v. Herrington,
Fae ee Bs a SE 6 6 ose eran ewe ks 38
North Carolina Environmental Policy Institute v. EPA,
Sel F.20 1250 C60) Cir, TSG) 2. wc tec cw ws 34
viii
ee ee
Pension Benefit Guaranty Corp. v. LTV Corp.,
LID DS. G2. Be CHRSUe oc cee cee 34, 35, 37
pec Pf Gis f+ A Re rn 43
Roanoke River Basin Association v. Hudson,
940 F.2d 58 (4th Cir. 1991) .............. passim
R nv. Methow Vall itizen ncil,
8 ae a ee 27, 36
Sierra Club v. Costle,
657 F.2d 298 (D.C. Cir. 1981) ............ 34, 38
Sierra Club v. Morton,
ee | Ds a | ar 35
Sierra Club v, Peterson,
Tid Fae 1609 OC. Cir. 1963) 2... wc cc ce es 43
Sierra Club v, U.S. Forest Service,
843 F.2d 1190 (9th Cir. 1988) ....... 43, 44, 49, 50
Silva v. Lynn, 482 F.2d 1282 (1st Cir. 1973) ..... 35
Small Refiner Lead Phase-Down Task Force v.
U.S. EPA, 705 F.2d 506 (D.C. Cir. 1983) ..... 38, 40
outh Carolina ex rel. Tindall v. Block,
717 F.2d 874 (4th Cir. 1983),
cert. denied, 465 U.S. 1080 (1984) ........... 34
State of North Carolina v. Hudson,
665 F. Supp. 428 (E.D.N.C. 1987) ......... 1, 16
iX
State of North Carolina v. Hudson,
731 F. Supp. 1261 (E.D.N.C. 1990) ...... 1, 10, 50
Steamboaters v. FERC, 759 F.2d 1382
reh. denied, 777 F.2d 1384 (9th Cir. 1985) ...... 27
wnshi iW Ww
Public Service Electric & Gas Co..
ee ee eee 43
See ue Bee es Gy TT ch hace ec cece ee 34
Webb v. Gorsuch, 699 F.2d 157 (4th Cir. 1983) . 49, 54
STATUTES
Ee De a 5) oil os eee ces 1
I OS neh cs cae ene 3
SOE OE cn oc v ek eke en eS 3
URE OU. 5. iis ees ete 12
EM ah ons ee 12
OE BE Fisk oie ce oe 2, 42
1 USS. OO Ook... ok 5 oo ok ce ccs 3
P.L. 100-589, 102 Stat. 2984 (1988) .... 2, 8, 47, 51
P.L. 101-640, 104 Stat. 4604 (1990) ...... 8, 48, 51
x
FEDERAL REGUALATIONS
UR ik on ck cee 2, 37
ee oo i eens aces 2, 36
i ei veri in jeep hae 2, 36
ie ee es a eee 2, 36
a Pee ee a wee ee passim
xi
OPINIONS DELIVERED IN THIS CASE
BY THE LOWER COURTS
The United States District Court for the Eastern
District of North Carolina has delivered two opinions in this
case, which can be found at 665 F. Supp. 428 and 731 F.
Supp. 1261. The United States Court of Appeals for the
Fourth Circuit delivered an opinion, which can be found at
940 F.2d 58. Each is reprinted in the Appendix.
GROUNDS UPON WHICH
THE JURISDICTION OF THIS COURT IS INVOKED
The judgment of the Court of Appeals was entered on
July 3, 1991. Timely petitions for rehearing with
suggestions for rehearing en banc were denied on August 20,
1991. This petition for a writ of certiorari is timely filed
within ninety days of this latter date. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS
INVOLVED IN THIS CASE
42 U.S.C. § 4332
P.L. 100-589, 102 Stat. 2984 (1988) [§ 5 only]
33 C.F.R. § 325.3
40 C.F.R. § 1500.1
40 C.F.R. § 1506.6
40 C.F.R. § 1507.1
40 C.F.R. § 1508.3
40 C.F.R. § 1508.7
40 C.F.R. § 1508.27
Each is reprinted in the Appendix.
STATEMENT OF THE CASE
I. Background
This dispute concerns a proposal by the City of
Virginia Beach, Virginia ("Virginia Beach") to construct a
85-mile long water supply pipeline that would enable
Virginia Beach to withdraw up to 60 million gallons per day
2
(mgd) of water from Lake Gaston, which straddles the
boundary between Virginia and North Carolina. The State
of North Carolina and the Roanoke River Basin Association
have challenged the Corps’ decision to permit this proposed
pipeline on several grounds, principally that no EIS was
prepared as required by the National Environmental Policy
Act ("NEPA"), 42 U.S.C. §§ 4321 et seg. The jurisdiction
of the District Court was invoked pursuant to 28 U.S.C.
§ 1331 (federal question) and 28 U.S.C. § 1361
(mandamus).
A. The Roanoke River System
Lake Gaston is part of the Roanoke River system that
drains approximately 9,600 square miles of North Carolina
and Virginia. The river rises in southwestern Virginia, flows
generally in a southeasterly direction to northeast North
Carolina, and eventually empties into Albemarle Sound on
the Atlantic. Several tributaries of the Roanoke pass through
south central Virginia and north central North Carolina.
3
ee
There are six major dams on the Roanoke River
system, three of which are in the general vicinity of the
North Carolina-Virginia border. Proceeding downstream,
these are the John H. Kerr Reservoir, Lake Gaston and
Roanoke Rapids Lake. Kerr Reservoir is by far the largest
of the three and is operated by the Corps of Engineers for
flood control, hydropower and low-flow regulation. Lake
Gaston and Roanoke Rapids Lake are owned and operated by
Virginia Electric & Power Company (VEPCO) as peaking
hydropower facilities. The three other dams -- Philpott,
Smith Mountain and Leesville -- are upstream of Kerr. JA
49 1a.!
The Wilmington (N.C.) District of the Corps operates
Kerr Dam and Reservoir according to a "Rule Curve,” which
is a plan for seasonal reservoir level fluctuations designed to
provide the greatest overall benefit to all competing interests.
| "JA" refers to the Joint Appendix filed with the Fourth Circuit.
4
JA 493a. The Corps attempts to balance the two principal
project purposes (i.e., flood control and power production),
as well as other purposes (e.g., downstream flow
augmentation and recreation). JA 1483a. The parties agree
that there is already insufficient water in Kerr Reservoir
during dry periods to satisfy these competing interests. Brief
of federal defendants and City of Virginia Beach filed with
the Court of Appeals ("Br.") at 41; see also JA 539a, 1837a;
Stip. 18.?
VEPCO operates its Gaston and Roanoke Rapids
projects in accordance with a license from the Federal
Energy Regulatory Commission (FERC), which requires
minimum releases for the protection of water quality and
aquatic life. JA 45la-470a. ‘rhose mandated minimum
releases from Roanoke Rapids range from 1,000 cubic feet
. "Stip.” refers to the joint stipulations submitted by the parties to
the Supplemental Administrative Record. These stipulations are on file
with the Eastern District of North Carolina.
5
ee
per second (cfs) during the winter to 2,000 cfs from mid-
spring through September. The FERC license also requires
VEPCO, in accordance with an agreement between the
Wilmington District of the Corps, the North Carolina
Wildlife Resources Commission and VEPCO, to release
augmented flows each spring during the time of spawning by
Striped bass downstream of Roanoke Rapids if adequate
storage for that purpose is available at Kerr. When water is
available between March 1 and April 15, the Corps raises the
water level in Kerr Reservoir to 302 feet (above mean sea
level) to accumulate sufficient water to allow flow
augmentation for striped bass spawning activity below
Roanoke Rapids during the spring. JA 397a.
Most of the water in Lake Gaston and Roanoke
Rapids Reservoir comes from Kerr because 92.6% of the
flow at Roanoke Rapids Dam is attributable to inflows above
Kerr Dam. JA 699a; see also JA 841a-858a. Consequently,
the releases made at Roanoke Rapids Dam are almost entirely
dependent on what Kerr makes available.
B. Albemarle-Roanok i
The Albemarle-Roanoke striped bass population,
which is a part of the anadromous Atlantic stock, differs
from almost all other striped bass populations in that it
travels a great distance upstream to spawn. This is because,
unlike other river systems, there are no tidal currents in the
lower reaches of the Roanoke River to support the semi-
buoyant eggs. Spawning Roanoke River striped bass must
depend on adequate river flows to keep the eggs from settling
to the bottom and dying. JA 1440a.
Spawning occurs each spring in the rapids below
Roanoke Rapids Dam about 130 miles from the mouth of the
river. Under good conditions, the eggs are carried
downstream and hatch before reaching Albemarle Sound at
a location where adequate food (zooplankton) is available for
the larvae. SR 11.01.°
The Albemarle-Roanoke stock has experienced a
dramatic decline during the last two decades. SR 11.22,
11.24. Congress concluded in 1988 that this particular
population "may soon reach a level from which recovery will
be exceptionally difficult." P.L. 100-589, §5(a)(2), 102
Stat. 2984. The cause of the decline is complex,
multifaceted and not fully understood. Id. Accordingly,
Congress commissioned the United States Fish and Wildlife
Service to conduct a report on the causes of the decline of
the striped bass stock. Jd. Subsequently, Congress ordered
the Corps to reevaluate the impacts of the proposed project
in light of that report. See P.L. 101-640, §413, 104 Stat.
4604, 4651 (1990).
> "SR" refers to exhibits within the Supplemental Administrative
Record, which is on file with the Eastern District of North Carolina.
8
From 1971 through 1988, the amount of water which
the Corps made available for striped bass spawning was
governed by a 1971 Memorandum of Understanding between
the Corps, VEPCO and the North Carolina Wildlife
Resources Commission. JA 443a-450a. To the extent water
was available, the Corps would make releases from Kerr
Reservoir sufficient to provide a flow of 6,000 cfs
downstream of the Roanoke Rapids Dam during the period
in which bass were expected to spawn -- the 51 days from
April 27 to June 15. JA 451la-470a. However, there was
often insufficient water for this purpose. JA 539a.
There had been "concern among several agencies for
some time that the existing flow regime during the spawning
season has contributed to or even caused the collapse of the
Roanoke-Albemarle stock since the late 1970s." JA 1830a.
Indeed, as early as 1980, the National Marine Fisheries
Service (NMFS) "advised the Corps that current water flow
releases on the Roanoke River were adversely impacting the
9
anadromous striped bass resource” and that "[t]he present
flow regime is inadequate to protect striped bass." JA
1376a-1377a. NMEFS has repeatedly affirmed this position.
Id.
The Roanoke River Water Flow Committee, which
includes striped bass experts from federal and_ state
agencies,* concluded that a substantially longer period of
augmented flows is necessary to preserve striped dass. The
Committee recommended that a new, longer flow regime be
adopted "to control the flow of the Roanoke River between
* Both the District Court and the Fourth Circuit made unwarranted,
disparaging assertions about the Flow Committee. See 940 F.2d at 62
n.3, 65, infra at 13a-14a n.3, 24a-25a; 731 F. Supp. at 1269, infra at
56a-59a. It is simply not true that petitioners formed the Committee, or
that the Corps did not assist the Committee in its work. In fact, the
Wilmington District of the Corps was an active participant in the
Committee’s work and contributed to its report. See JA 1422a-1424a,
1426a, 1429a, 1920a; Stip. 07. Furthermore, the Committee was formed
under the aegis of the National Marine Fisheries Service. li is an
independent organization with specific expertise in the issues involved in
this case. The contrary assertions by the lower courts are mistakenly
based on a complaint by the Norfolk District of the Corps, which has no
responsibility for flows in the Roanoke River, that it was not made a
member. See JA 1418a-1419a.
10
March 1 to June 30 [122 days] of each year." JA 1422a.°
Under this recommendation, target flows would range from
8,500 cfs in March to 5,300 cfs at the end of June.
Minimum flows would decrease from 7,543 cfs in March to
3,058 cfs at the end of June. However, the Corps and
VEPCO could not provide sufficient water to meet those
standards. JA 1423a. Therefore, all parties agreed to a
compromise flow regime "curtailed both in time (April 1 to
June 15), and in magnitude of low and high flows." Id.
The final version of the compromise flow regime was
proposed to the Committee by the Wilmington District in
September, 1988. JA 1915a-1930a. The Committee noted
that it "remains concerned that [this compromise] flow
regime does not adequately address low flow augmentation
for striped bass during dry years . .. ." JA 1429a.
* The Committee found that both very high flows and very low
flows were detrimental to striped bass. Therefore, it proposed “target”
flows, and maximum and minimum acceptable flows. Because a 60 mgd
withdrawal would have a negative impact during low flow conditions, it
is only those conditions that are discussed here.
1]
Nevertheless, because the compromise flow regime was so
markedly superior to the prior practice, every agency that
made comments to the Committee agreed that the
compromise regime should be implemented. JA 1423a.
The Corps and VEPCO were able to maintain flows
set by the compromise flow regime for a large portion of the
curtailed 1988 spawning period. Preliminary (JA 1423a) and
final results from the 1988 spawning season indicated the
highest abundance of juvenile bass since 1976, a fact the
agencies attributed to the improved flow regime. JA 1368a,
1687a, 1794a.
Il. Nature Of nd Prior Pr in
On July 15, 1983, Virginia Beach applied for a Corps
permit under 33 U.S.C. §§ 403 and 1344 for the
construction of its proposed pipeline. The proposed 60 mgd
withdrawn from Lake Gaston would be used by the cities of
Virginia Beach (48 mgd), Chesapeake (10 mgd), and
12
Franklin (1 mgd) and Isle of Wight County (1 mgd). The
pipeline would originate at Pea Hill Creek, about 400 yards
north of the Virginia-North Carolina state line, and terminate
85 miles east at water lines owned by the City of Norfolk,
Virginia.
Following several public hearings, the Norfolk
District published a proposed Final Environmental
Assessment (EA) and a proposed Finding of No Significant
Impact (FONSI) on December 7, 1983. On January 9,
1984, the Corps affirmed its FONSI, published a Statement
of Findings (SOF), and issued the permit to Virginia Beach.
In those documents, the Corps concluded that the project
would not have a significant effect on the environment, that
the permit could be issued without preparation of an EIS,
and that the project was in the public interest.
Virginia Beach also sought a contract with the
Wilmington District to purchase 10,200 acre/feet of storage
in Kerr Reservoir. JA 359a-38la. The purpose of the
13
—" |
contract has alternately been described as 1) providing
Virginia Beach with water to release downstream if its 60
mgd withdrawal caused the water level in the Roanoke River
to fall below minimum permissible levels (WR 1, 42),° and
2) providing water to compensate for flows taken from
striped bass during spawning season. JA 1810a, 1819a.
The Wilmington District adopted the EA of the Norfolk
District and issued its FONSI on January 13, 1984. The
contract was approved by the Corps on January 30, 1984.
JA 359a-38 la.
On January 12, 1984, the State of North Carolina
filed this action against the Corps of Engineers in the Eastern
District of North Carolina. The Roanoke River Basin
Association and twelve counties in North Carolina and
Virginia intervened as plaintiffs on June 20, 1984. Virginia
° "WR" refers to exhibits to the Wilmington District Administrative
Record. These exhibits are on file with the Eastern District of North
Carolina.
14
Beach was permitted to intervene as a defendant on
December 3, 1985.’
The amended complaints challenged the Corps’
issuance of the pipeline permit and the water supply
allocation contract. Plaintiffs alleged that the Corps
improperly refused to prepare an EIS prior to issuing the
permit and entering the contract, and failed to conduct a
proper public interest review. On cross-motions for
summary judgment, the District Court considered the
certified administrative record as supplemented by the
parties, and issued an opinion on July 7, 1987. Although the
court affirmed the decision of the Corps in several respects,
” The day the permit was issued (three days before North Carolina
sued the Corps), Virginia Beach filed a declaratory judgment suit in the
Eastern District of Virginia against the Roanoke River Basin Association,
several of its directors and officers, and the Governor of North Carolina,
seeking an order declaring that the permit issued for its pipeline project
was lawful and valid. On the Governor's appeal of an interlocutory
order regarding personal jurisdiction, the Fourth Circuit ruled that the
Virginia Beach action must be dismissed or transferred to the Eastern
District of North Carolina. City of Virginia Beach v. Roanoke River
Basin Association, 776 F.2d 484, 489 (4th Cir. 1985). That action was
trausferred on November 14, 1985, and then dismissed as duplicative on
December 17, 1985.
15
———
- women ae ee
PP a
it found that the Corps arbitrarily analyzed the potential
environmental effects of the project on striped bass, and also
arbitrarily conducted its public interest review regarding the
extent of Virginia Beach’s need for water. The court
directed the Corps to:
l. As a part of its NEPA review make an
independent assessment of the effects of the
proposed project on striped bass to determine
whether the preparation of an EIS is required
or whether any mitigative measures are
necessary; and, ;
& As a part of its public interest review make a
determination of the extent of Virginia
Beach’s water needs.
665 F. Supp. at 450, infra at 152a. The District Court
retained jurisdiction to review the Corps’ further analysis.
On June 6, 1988, the Norfolk District distributed for
comment a draft Supplement{al] Environmental Assessment
(SEA) and a Revised Finding of No Significant Impact
(RFONSI), which again concluded that the proposed project
would not have a significant impact on striped bass and that
16
an EIS was not required. JA 1065a-108la. On July 7,
1988, the Wilmington District adopted the striped bass
portions of the Norfolk draft SEA and published its own
draft RFONSI. JA 1093a-1096a.
In making its decisions, the Corps relied heavily upon
computer modeling done by its Wilmington District. See JA
1805a-1848a. The Corps did not disclose at least two
important documents containing critical staff analyses of this
modeling until after its final decision. JA 1675a, 1857a.
The first document was an October 5, 1988 memorandum
which the Corps has contended provided a complete
analytical defense to plaintiffs’ criticisms of the Corps’
mode’ JA 1675a. That memorandum contained substantial
new information never previously available to the public.
This included discussion of a "preliminary determination"
that overall the compromise flow regime would be more
easily maintained than the prior regime. The second
document was the "preliminary determination" itself, which
17
ae
was initially prepared by the Corps’ Wilmington District in
1988, but never made publicly available or referred to in the
SEA or any documents circulated for comment. JA 1857a.
These were two principal documents on which the SSOF and
RFONSIs were based. JA 1836a, 1837a. The State of
North Carolina, the Roanoke River Basin Association, and
the rest of the interested public never had the opportunity to
comment on this vital information.
Despite being deprived of crucial information, state
and federal agencies with striped bass expertise, independent
fisheries biologists, the parties and others submitted
extensive, critical comments.* Each of the resource
agencies advised the Corps that the probable impact on
striped bass would be significant and that an EIS should be
. See JA 1375a-1390a, 1393a-1406a, 1413a-1416a, 1433a-1446a,
1459a-1468a, 1477a-1528a, 1421a-143la, 1615a-1620a, 1645a-1646a,
1647a-1648a, 1675a-1680a, 1915a-1919a; SR 115, 117.
18
prepared. For example, the U.S. Fish and Wildlife Service
(USFWS) stated:
"In view of the significance of the impacts identified
regarding the proposed activities, i.e., reallocation of
the water supply in Kerr Reservoir and withdrawal of
60 mgd from the Roanoke system, the Service
believes that the preparation of an Environmental
Impact Statement is appropriate.” JA 1462a.
The National Marine Fisheries Service (NMFS) wrote:
"Considering these recommended changes in water
flow management, the City of Virginia Beach’s
project is a high risk proposal. It should not be
permitted without a full scale Environmental Impact
Statement, examining its effects on striped bass under
the enhanced augmented flow regime in light of all
other factors affecting the system.” JA 1386a.
The North Carolina Wildlife Resources Commission said:
"We believe removal of 60 mgd is likely to cause
severe damage to striped bass in the Roanoke River.
The Corps’ tentative conclusions to the contrary are
not scientifically supportable.” JA 1416a.
The North Carolina Division of Marine Fisheries advised:
"The Division of Marine Fisheries (DMF) strongly
objects to withdrawal of 60 million gallons per day
("mgd") of water from Lake Gaston for Virginia
Beach’s use. A full Environmental Impact Statement
(EIS) is essential and necessary to fully and
19
adequately address numerous impacts of any
withdrawal from the basin on down stream uses, in
particular year round maintenance of the striped bass
population... .
"The preparation of an Environmental Impact
Statement (EIS) is absolutely necessary to properly
address the existing, proposed, and cumulative
impacts of water withdrawal on striped bass life
history in the Roanoke River.” JA 1363a-1364a.
The agencies with striped bass expertise concluded
that an EIS was necessary because river flow is a crucial
factor affecting the Albemarle-Roanoke stock, and that even
under current conditions insufficient water is available. The
NMFS
"conclude[d] that enhanced river flow is extremely
important to the survival of the striped bass
population in the Roanoke River.” JA 1375a.
The USFWS concluded
"that flows may be more significant in determining
reproductive success than other factors.” JA 1462a.
The North Carolina Wildlife Resources Commission noted
that
20
"adequate river flow is essential to the survival of
striped bass. We believe removal of 60 mgd is likely
to cause severe damage to striped bass in the Roanoke
River.” JA 1416a.
The North Carolina Division of Marine Fisheries concluded
that
"the primary problem with the striped bass population
is Roanoke River flow (due to the operation of the
dams) and the resulting water quality is causing high
mortalities in the larval population... .
"Division of Marine Fisheries scientists are concerned
that increasing the frequency and duration of
minimum flow would not only impact the actual act
of spawning, but also affect overall reproduction and
recruitment." JA 1365a-1366a.
The Roanoke River Flow Committee, which consists of
representatives of these agencies and university fisheries
biologists (JA 1920a), advised the Corps that
"river flow has a major impact upon the success of
the striped bass in spawning and on subsequent life
history stages... .
"The Committee concludes that the quantity of water
passing through the Roanoke River system between
March and June of each year has a significant effect
on striped bass and other natural resources
downstream.” JA 1422a, 1424a. :
21
< owed AS
In sum, all commenting agencies with expertise in
fisheries found that river flow was crucial to Albemarle-
Roanoke striped bass (JA 1375a-1390a, 1413a-1416a, 1433a-
1446a, 1459a-1468a); that additional water was needed for
bass survival (JA 1375a-1390a, 1413a-1416a, 1433a-1446a,
1459a-1468a); that when water was released in accordance
with the compromise flow regime, striped bass showed
substantial improvement (JA 1375a-1390a, 1413a-1416a,
1433a-1446a, 1459a-1468a); and that an EIS must be
prepared before the Corps permitted the 60 mgd withdrawal
(JA 1375a-1390a, 1413a-1416a, 1433a-1446a, 1459a-1468a).
Despite these strong, uniformly critical comments, the
Norfolk District on December 21, 1988 issued a final SEA
(JA 1805a-1828a) identical to the draft SEA it had circulated
for comment in June, a final RFONSI (JA 1847a-1848a), and
a Supplemental Statement of Findings (SSOF) (JA 1828a-
1846a). On December 23, 1988, the Wilmington District
adopted the Norfolk SEA and issued its own RFONSI. JA
22
1851a-1854a. In January 1989, each district issued revised
documents, acknowledging errors in the earlier documents,
but changing no conclusions. JA 1849a-1850a, 1855a-1856a.
Despite the fact that the Corps’ findings were so
strongly questioned by the expert resource agencies, the
District Court ruled on February 2, 1990 that the Corps was
not required by NEPA to prepare an EIS prior to allowing
the 60 mgd water withdrawal, and that the Corps’ public
interest review had not been conducted in an arbitrary
manner. North Carolina’s motion for reconsideration was
denied on March 1, 1990. Notices of appeal to the Court of
Appeals followed on April 2 and 3, 1990.
The Court of Appeals affirmed the District Court’s
holding that the Corps could refuse to prepare an EIS. The
Court of Appeals summarily rejected each of petitioners’
arguments, stating that because the Corps considered each of
the issues raised by petitioners, "no more is required." 940
F.2d at 64, infra at 20a. After receiving petitioners’ Petition
23
pk ete Le
Renin ons
for Rehearing and Suggestion for Rehearing En Banc and
requiring respondents to submit a reply, the Court of Appeals
denied reconsideration on August 20, 1991.
REASONS FOR GRANTING THE WRIT
The Court of Appeals decision is in conflict with a
principle established by this Court that an agency must make
critical information on which it relies available to the public
before it reaches a final decision. It is also contrary to
decisions of other courts of appeals regarding the obligation
of an agency to explain its computer modeling once
substantial questions as to its validity have been raised.
The opinion below is in error, and in conflict with
decisions of other courts of appeals, regarding application of
NEPA. The opinion below demonstrates a mistaken view of
the purposes and requirements of the National Environmental
Policy Act -- a view that could frustrate congressional intent
in a wide range of future NEPA cases in the Fourth Circuit.
24
This case is important because of the stakes involved,
but it also demonstrates the continuing confusion and conflict
over when an EIS is required under NEPA, despite this
Court’s recent decisions involving that Act. Until this Court
provides further guidance on the questions presented in this
case, federal agencies will continue to confront inconsistent
judicial interpretations of NEPA’s language in deciding
issues Of substantial national interest involving policies and
programs intended to be implemented nationwide.
The Fourth Circuit has interpreted quite differently
than other courts of appeals NEPA’s test for determining
when a proposed action "significantly affect[s] the human
environment." Its decision regarding the circumstances in
which a mitigation condition will eliminate an otherwise
potentially significant impact is also directly contrary to
decisions of other courts of appeals. There is also conflict
between the Fourth Circuit and other courts of appeals over
the meaning and effect of the Council on Environmental
25
i a |
Quality’s implementing NEPA regulations as they apply to
impacts that are likely to be controversial, uncertain and
cumulative.
I. The Opinion Below Is In Error And In
Conflict With Decisions Of The Ninth
Circuit Regarding The Need To Explain
Specifically How Mitigation Will Eliminate
Potentially Significant Environmental
Impacts.
The Court of Appeals concluded that the Corps had
not acted arbitrarily or unlawfully in declining to prepare an
EIS because of the mitigation condition imposed by the
Corps. The Court of Appeals reached this conclusion even
though the Corps did not make its mitigation condition
available for public comment and never explained specifically
how the condition would mitigate the impact of the project.
The opinion below is in conflict with the holding of the
Ninth Circuit that when an agency intends to rely on
mitigation to justify a finding of no significant impact, it
"must explain exactly how the measures will mitigate the
26
project’s impact.” LaFlamme v, FERC, 852 F.2d 389, 399-
400 (1988); see also Jones v. Gordon, 792 F.2d 821, 829
(9th Cir. 1986); fin. or. 759 F.2d 1382,
1393, reh. denied, 777 F.2d 1384 (9th Cir. 1985)("FERC
fails to explain specifically how the conditions would
mitigate the impact of the project").°
The parties agreed below that "[t]he effectiveness of
the mitigation condition is the single most important issue in
this case." Br. at 14; petitioners’ reply brief at 3. The
Corps contended, and the Court of Appeals concurred, that
the mitigation condition "completely compensat[es]" for the
City’s 60 mgd withdrawal. JA 1838a; see 940 F.2d at 63-
64, infra at 15a-20a. Yet, the respondents conceded below
% The discussion of mitigation in Robertson v. Methow Valley
Citizens Council, 490 U.S. 332 (1989) was in the context of a challenge
to the adequacy of an EIS, as opposed to a decision -- as here -- not to
prepare an EIS on the grounds that a mitigation condition eliminates a
project's adverse environmental impacts. Nevertheless, the requirement
is the same in both situations “that mitigation be discussed in sufficient
detail to ensure that environmental consequences have been fairly
evaluated... .” Id. at 352.
27
—_ Sa Dee
that the City lacked storage sufficient to provide releases
during striped bass spawning periods "by an amount equal to
the planned withdrawal.” Br. at 19 n.11. The conclusion
that the mitigation condition completely compensates for the
withdrawals, then, is plainly wrong.
The Corps never described any mitigation plan in
either its draft or final documents. Indeed, as the NMFS and
USFWS advised the Corps after the final decision was made:
"NMFS has seen brief reference to mitigation
in two documents, the [SSOF] and the
[Norfolk FONSI]. No details were given, and
NMFS could not evaluate the effectiveness of
mitigation." JA 139a.
"[FWS] could not have directed specific
comments toward mitigation because the FWS
was never provided a specific description of
the mitigation plan by the Corps of
Engineers." JA 145a.
In short, neither the parties nor the striped bass
experts had an opportunity to comment on what the Corps
later described as its "most important finding.” JA 1850a.
28
Yet, remarkably, the RFONSI found that the USFWS and
NMFS have
"never taken issue with the Wilmington
District’s model and there is no reason to
assume that they would find the model results
regarding the effectiveness of the flow
mitigation permit condition to be
controversial.” JA 1849a-1850a.
After the Corps had issued the permit and announced
its mitigation condition, NMFS commented:
"The offer by the City of Virginia Beach to
use its storage is not considered a complete
mitigation plan." JA 140a.
"Lacking a full analysis, we do not consider
this offer to be a mitigation plan.” JA 14la.
At no point has the Corps demonstrated specifically
how the City’s storage would be utilized to eliminate the
project’s impacts. The mitigation condition simply states a
conclusion that the Virginia Beach storage must be used "to
not cause the loss of any augmented spawning flow days
which would otherwise be caused by the City’s withdrawal.”
JA 1838a. Nowhere in the record is there any detailed
29
explanation of the manner in which that result will be
accomplished or whether the City actually has sufficient
storage to assure that result. In fact, the Corps has
elsewhere indicated that such flows will not occur.
According to the Corps, "Virginia Beach will not be
withdrawing water from its storage in Kerr Reservoir during
February through June.” JA 1679a. The Corps also advised
that "[aJt no time will water be released from Kerr
exclusively for withdrawal by the City” (JA 336a) and “that
no water is to be released from Kerr for benefit of Virginia
Beach during droughts. . . . until Kerr Reservoir is at the
bottom of the power pool (presently at 293 m.s.1.).” (Stip.
30; see also JA 1755a-1757a).
In light of the vagueness of the mitigation condition
and the continuing uncertainty about the ability of the City
to provide sufficient storage to meet that condition, it was
error to hold that the "mitigation condition is adequate to
address any possible environmental effects of the pipeline.”
940 F.2d at 63, infra at 15a.'°
Il. The Opinion Below Is In Error And In
Conflict With The Rule Adopted By This
Court That Critical Information On Which
The Agency Relies Must Be Made Available
For Review And Comment Before The
Agency Makes Its Decision.
Closely related to the issue of whether the Corps must
explicate specifically how its mitigation condition will
eliminate an otherwise potentially significant environmental
impact is the issue of whether the Corps was obligated to
10 One indication of the failure of the Court of Appeals to conduct
a searching investigation of the record is its conclusion that commentors
never raised the issue that reductions in flow on already iost days are of
concern. 940 F.2d at 63-64, infra at 18a. This ignores the comment of
the North Carolina Division of Marine Fisheries that:
[e]ven if conditions during a particular year were such that no
days of spawning flows were entirely lost, flows would
nevertheless be reduced throughout the spawning period. There
is already insufficient water in the system to provide reasonable
spawning conditions, and given the fragile condition of the bass
populatio., any loss of water could have an extremely
significant impact.
JA 83la; see also JA 222a, 226a.
31
make available two critical documents on which the Corps
ultimately relied to justify its model and modeling
assumptions. Indeed, the Corps relied on the absence of
comment on "modeling results regarding the effectiveness of
the flow mitigation permit condition” as proof that the issue
was not controversial. JA 1849a-1850a.
As noted above, the Corps shielded crucial modeling
information until after it published its final decision. The
Corps did not disclose at least two important documents
containing critical staff analyses. JA 1675a, 1857a. The
first document was a October 5, 1988 memorandum which
the Corps has alleged provided an analytical defense to
plaintiffs’ criticisms of the Corps’ model. JA 1675a. That
memorandum contained substantial new information never
previously available to the public, including discussion of a
"preliminary determination” that overall the compromise flow
regime would be more easily maintained than the old. The
second document was the "preliminary determination” itself,
32
which was initially prepared by the Corps’ Wilmington
District in 1988, but never made publicly available or
referred to in the SEA or any documents circulated for
comment. JA 1857a. Because the Corps refused to disclose
these documents, the public never had the opportunity to
comment on this vital information.
The Court of Appeals did not dispute that-the Corps
failed to disclose vital information. Rather, it summarily
dismissed petitioners’ argument by asserting that petitioners
did not explain how they were harmed by this shielding of
vital information, and that the court was "satisfied that the
[petitioners] were not prejudiced by any slowness or
incompleteness in the Corps’ disclosure of modeling
information.” 940 F.2d at 65, infra at 25a. This hoiding
squarely conflicts with decisions of this Court, the express
provisions of NEPA and tke binding Council on
Environmental Quality (CEQ) regulations.
33
07m Be teh dite. ar,
ant Os od 2h Sane rd
Pe ee ee ee
This Court has held that the shielding of information
from public review is alone sufficient to invalidate agency
action. Bowman Transportation, Inc, v. Arkansas-Best
Freight System, Inc., 419 U.S. 281, 288 n.4 (1974)." In
a recent case, this Court held that the principle established in
Bowman Transportation did not apply to an action brought
under the Employee Retirement Income Security Act of 1974
("ERISA"). Pension Benefit Guaranty Corp. v. LTV Corp.,
i110 S. Ct. 2668, 2679-81 (1990). The holding in Pension
Benefit was based on the fact that neither ERISA nor the
Administrative Procedure Act specifically provided the public
11 This principle has been implemented by several other federal
courts, including previous panels of the Fourth Circuit. See, e.g., North
Carolina Environmental Policy Institute v. EPA, 881 F.2d 1250, 1258
(4th Cir. 1989); McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317,
1323-24 (D.C. Cir. 1988); South Carolina ex rel. Tindall v. Block, 717
F.2d 874, 885 (4th Cir. 1983), cert. denied, 465 U.S. 1080 (1984);
Sierra Club v. Costle, 657 F.2d 298, 333 (D.C. Cir. 1981); U.S. Lines,
Inc. v. Federal Maritime Comm’n, 584 F.2d 519, 540 (D.C. Cir. 1978);
Ely v. Velde, 451 F.2d 1130, 1138-39 (4th Cir. 1971); National Wildlife
Federation v. Marsh, 568 F. Supp. 985, 993-94 (D.D.C. 1983).
34
the procedural right to access to all relevant information. Id.
at 2680.
By contrast, one of the fundamental purposes of
NEPA is to ensure that the public is fully apprised of the
potential environmental effects of major federal actions
before they are finalized. As this Court has stated:
NEPA promotes its sweeping commitment to
"prevent or eliminate damage to the
environment and biosphere” by focusing
Government and public attention on the
environmental effects of proposed agency
action. 42 USC § 4321. By so focusing
agency attention, NEPA ensures that the
agency will not act on_ incomplete
information, only to regret its decision after it
is too late to correct. . . . Similarly, the
broad dissemination of information mandated
eng oe ep RE ee
ee epfiel thaen.
Marsh v, Oregon Natural Resources Council, 490 U.S. 360,
371 (1989) (citations omitted, emphasis added). !?
'2 See also Sierra Club v. Morton, 510 F.2d 813, 820 (Sth Cir.
1975) (NEPA “serves as an environmental full disclosure law”) (quoting
Silva v. Lynn, 482 F.2d 1282, 1284-85 (ist Cir. 1973)).
35
Ta at pastel ct | Mi Lal
The CEQ regulations which implement NEPA
similarly provide:
NEPA procedures must insure _ that
environmental information is available to
public officials and citizens before decisions
are made and before actions are taken. .. .
Accurate scientific analysis, expert agency
comments, and public scrutiny are essential to
implementing NEPA.
™~ ~ Sad
Agencies shall . . . [p]rovide .. . the
availability of environmental documents so as
to inform those persons and agencies who
may be interested or affected.
40 C.F.R. §§ 1500.1(b) & 1506.6(b). These CEQ
regulations are binding on all federal agencies and must be
given substantial deference by reviewing courts. Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 352-55
(1989); see also 40 C.F.R. § 1507.1. Finally, the Corps’
own regulations state:
The [public] notice should include . . . [aJny
. available information which may assist
interested parties in evaluating the likely
36
impact of the proposed activity . . . on factors
affecting the public interest.
33 C.F.R. § 325.3(a)(13).
By holding that the Corps’ failure to disclose
information was of no consequence, the Court of Appeals
ignored the clear language of these binding regulations and
this Court’s opinion in Oregon Natural Resources. This
Court should grant the writ to decide that, in light of the
express disclosure requirements provided by NEPA and the
binding CEQ regulations, the holding in Pension Benefit does
not apply to NEPA cases.'°
'3 In another NEPA case, the District Court for the District of
Columbia invalidated a Corps permit for failure to disclose a document
on which it relied. National Wildlife Federation v. Marsh, 568 F. Supp.
985, 991-98 (1983); see also Grazing Fields Farm v. Goldschmidt, 626
F.2d 1068, 1072-74 (1st Cir. 1980) (holding that an EIS was inadequate
because information was not made available for public review and
comment).
37
ite thts th Me draak i,
%
5
4
2
4
%
7
5
‘
i
Ill. The Opinion Below Is In Error And In
Conflict With Decisions Of The District Of
Columbia Circuit Requiring Agencies to
Provide A Complete Analytical Defense Of
Modeling Which Has Been Challenged, _
The opinion below conflicts with decisions of the
Court of Appeals for the District of Columbia Circuit which
establish that an agency may rely on a model oniy if the
agency provides a complete analytical defense of the model
and its assumptions. '*
Surprisingly, the opinion below also departs without
explanation from the prior view of the Court of Appeals that
a federal agency obligated to take into account
the values . . . NEPA seek{s] to safeguard,
may not evade that obligation by keeping its
thought processes under wraps. ... To
enable a court to ascertain whether there has
been a genuine, not a perfunctory compliance
is Natural Resources Defense Council, Inc. v. Herrington, 768
F.2d 1355, 1420-22 (D.C. Cir. 1985); Eagle-Picher Industries v. U.S.
EPA, 759 F.2d 905, 921-22 (D.C. Cir. 1985); Small Refiner Lead
Phase-Down Task Force v. U.S. EPA, 705 F.2d 506, 535 (D.C. Cir.
1983); Sierra Club v. Costle, 657 F.2d 298, 332-33 (D.C. Cir. 1981);
Alabama Power Co. v. Costle, 636 F.2d 323, 387-88 (D.C. Cir. 1979);
American Public Gas Ass’n v. Federal Power Comm'n, 567 F.2d 1016,
1039 (D.C. Cir. 1977), cert. denied, 435 U.S. 907 (1978).
38
with NEPA, the [agency] will be required to
explicate fully its course of inquiry, its
analysis, and its reasoning.
Ely v. Velde, 451 F.2d 1130, 1138-39 (4th Cir. 1971).
The Corps simply has not met its burden of
completely defending its model, even though the lengthy
model itself was made a part of the record. JA 1934a-
196la. The Corps has conceded that the model is not self-
explanatory. JA 623a. Although some modeling
assumptions are evident in the model coce and others are
explained in documents never made available to the public
before the final decision (JA 1675a, 1857a), several critical
assumptions have never been explained. For example, the
Corps has never explained how it incorporated the Virginia
Beach water supply on in its modeling or how the use of
that storage was modeled.
The Court of Appeals concluded that the petitioners
were not prejudiced by the failure of the Corps to provide a
complete defense of its computer model. The opinion says
39
mtn ede DS anthem a ales i all 4
Soe TiN nal sctetind Aik
that the petitioners "have not explained what use they expect
to make of [this information]." 940 F.2d at 65, infra at 24a.
Requiring petitioners to demonstrate precisely how
undisclosed information would have been used is unjustified
as a matter of law and fact, and is in conflict with the
decisions of other courts of appeals.
In Small Refiner Lead Phase-Down Task Force v.
U.S. EPA, 705 F.2d 506, 540-41 (D.C. Cir. 1983), for
example, the court held that where an agency provides no
opportunity to reply to its late evidence, such evidence
cannot be relied on by the agency to support its action
with he need for any showi laintiffs of prej
Here, however, petitioners have had no opportunity to
comment on some modeling assumptions because they were
identified only after the Corps revealed its decision and other
modeling assumptions because they have never been
disclosed at all.
40
The holding below that the petitioners were not
prejudiced is also clearly contrary to the record. First, as
noted above, certain critical information has never been
provided to the petitioners and the reviewing courts. How
can a party show what use it would make of information it
has never seen? Second, based on information obtained after
the Corps’ decision, the petitioners and two federal agencies
showed that the mitigation condition would not eliminate the
adverse environmental effects of the withdrawals.’ Their
failure to raise that point before the decision was reached was
the result of the Corps’ failure to explain its modeling and
mitigation condition fully, and to provide the public an
opportunity to comment. What greater or more obvious
showing of prejudice could be made?
'S The Court of Appeals clearly misconstrued the nature of the
controversy, which was never confined to the potential loss of a day of
augmented spawning flows, but rather went to the net reduction in water
for spawning flows where admittedly there are already inadequate flows.
JA 83 la.
41
a
IV. The Opinion Below Is In Error And In
Conflict With Decisions Of Other Courts of
Appeals Implementing The CEQ
Regulations Which Govern Whether An
EIS Must Be Prepared.
NEPA requires all federal agencies to prepare an EIS
for any "major Federal action significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332.
"Significantly" as used in NEPA requires considerations of
both context and intensity. 40 C.F.R. § 1508.27. “Intensity”
is defined by regulation as the “severity of the impact.” 40
C.F.R. § 1508.27(b). In order to determine the severity of
the impact, the Corps was required to evaluate ten specific
factors listed in that regulation, three of which were
particularly relevant to this case:
(4) The degree to which the possible
effects on the quality of the human
environment are likely to be highly
controversial.
(5) The degree to which the possible
effects on the human environment are highly
uncertain or involve unique or unknown risks.
42
(7) | Whether the action is related to other
actions with individually insignificant but
cumulatively significant impacts. Significance
exists if it is reasonable to anticipate a
cumulatively significant impact on the
environment.
"Affecting" means will or may have an effect on. 40 C.F.R.
§ 1508.3. The Corps need not determine that the impact will
be significant. The courts of appeals have uniformly
determined that an agency must prepare an EIS if the impact
of an action may be significant. '®
Given the substantial expert opinion that the project
may adversely affect the environment, particularly the
already stressed striped bass stock, the Corps was required to
prepare an EIS in this case.
'© Louisiana ex rel. Guste v. Lee, 853 F.2d 1219, 1222-23 (Sth
Cir. 1988)(Wisdom, J.); Sierra Club v. U.S. Forest Service, 843 F.2d
1190, 1193 (9th Cir. 1988); Quinonez-Lopez_v. Coco Lagoon
Development Corp., 733 F.2d 1, 2 (ist Cir. 1984); Sierra Club v.
Peterson, 717 F.2d 1409, 1413-14 (D.C. Cir. 1983); Township of Lower
Alesees. Cunsk, x. Rollie Renton Seatie. 0, 85a 687 F.2d 732,
742 (3d Cir. 1982); Ming
498 F.2d 1314, 1320 (8th Cir. 1974); Hanly v. Kleindienst, 471 F.2d
823, 831 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973).
43
A. Controversy —-
40 C.F.R. § 1508.27(b)(4)
The binding CEQ regulations required the Corps to
consider the degree to which the possible effects on striped
bass are likely to be highly controversial. 40 C.F.R.
§1508.27(b)(4). The Court of Appeals’ decision concerning
the Corps’ finding that this case is not controversial should
be reviewed by this Court for at least three reasons.
First, the opinion below is in direct conflict with the
clear language of this regulation and with decisions of the
Court of Appeals for the Ninth Circuit. The Ninth Circuit
has interpreted this CEQ regulation to require an agency to
prepare an EIS where commenting public agencies and others
with expertise in the subject matter conclude that there may
be a significant impact on the environment.’’
7 See, ¢.g., LaFlamme v. FERC, 852 F.2d 389, 401 (9th Cir.
1988) (public comments about the effect the project would have on the
area necessitated an EIS); Sierra Club v. U.S. Forest Service, 843 F.2d
1190, 1193 (9th Cir. 1988) (EIS required where affidavits and testimony
of conservationists, biologists, and other experts were highly critical of
(continued...)
44
The Corps’ views have been strenuously criticized by
the expert agencies. As explained above, the U.S. Fish and
Wildlife Service (JA 1459a-1468a), the National Marine
Fisheries Service (JA 1375a-1389a), the North Carolina
Wildlife Resources Commission (JA 1413a-1416a), the North
Carolina Division of Marine Fisheries (JA 1363a-1374a), and
the Roanoke River Flow Committee (JA1421la-1431a)'*
provided many explicit and detailed reasons why, contrary to
the Corps’ view, the project may have significant
environmental impact.'? By allowing the Corps to
17(. continued)
the EAs); Jones v. Gordon, 792 F.2d 821, 828-29 (9th Cir. 1986)
(agency cannot avoid EIS by simply disputing public comments regarding
ea Agr tiger adhe 7th a PP eng
1172, 1182 (tb Cir. 1982) (EIS sodas ake sumer "received
numerous responses from conservationists, biologists, and other
knowledgeable individuals, all highly critical of the EA”).
- See also the comments of Professor Roger Rulifson of East
Carolina University (JA 1433a-1458a).
9 See n.15, supra at 41. In fact, the issue of what flows are
needed for striped bass in the Roanoke River has been controversial since
the first impoundment was built in the 1950s. JA 504a.
45
summarily dismiss these substantial expert views rather than
weibiiis an EIS to fully assess them, the opinion below
creates a clear conflict with prior decisions of the Ninth
Circuit.
Second, the opinion below is also in conflict with a
decision of the Ninth Circuit that the requirement to prepare
an EIS is not eliminated so long as substantial questions
remain regarding the effectiveness of the mitigation
condition. Conner v. Burford, 848 F.2d 1441, 1450 (1988),
cert, denied, 489 U.S. 1012 (1989). That there is a
substantial controversy over the effectiveness of the
mitigation is obvious. JA 114a-115a, 139a-42a. Contrary
to the statement by the Corps in its SSOF (JA 1838a), the
mitigation condition would not compensate completely for
the City’s withdrawals, as respondents now concede. Br. at
19n.11. Because flows would be affected even with the use
of the City’s storage, the Corps was obliged, as NMFS and
USFWS urged, to conduct a cumulative impact analysis of
46
this remaining impact together with all past, present and
reasonably foreseeable conditions affecting the same resource
before deciding whether an EIS was required. See infra at
52-54. The Corps failed to do so here.
Third, the opinion below also creates a conflict with
a decision of the Court of Appeals for the District of
Columbia that preparation of an EIS is particularly important
when public controversy over the effects of the project are
coupled with congressional investigation of the matter under
consideration. Foundation on Economic Trends v, Heckler,
587 F. Supp. 753, 756 (D.D.C. 1984), aff'd in part, vacated
in part on other grounds, 756 F.2d 143 (D.C. Cir. 1985).
Congress found in 1988 that
the striped bass and the aquatic environment
of the Albemarle Sound-Roanoke River basin
presently are being significantly affected by
combined but not fully understood
causes. ...
P.L. 100-589, §5(a)(5), 102 Stat. 2984, 2985, 16 U.S.C.
§1851 note. Accordingly, Congress required the Corps to
47
reevaluate the impacts of the proposed pipeline in light of a
study to be completed by the U.S. Fish and Wildlife Service
later this year. See P.L. 101-640, §413, 104 Stat. 4604,
4651 (1990). These actions by Congress, coupled with the
substantial expert opinion that the project may have adverse
environmental impacts, demonstrate that the level of
controversy is such that an EIS must be prepared.
The Court of Appeals nevertheless dismissed the
above arguments by saying:
The Corps of Engineers should consider the
comments of other agencies, but it need not
defer to them when it disagrees. The Corps
addressed the specific comments of the other
agencies, and explained why it found them
unpersuasive. No more is required.
940 F.2d at 64, infra at 20a. This view demonstrates a
fundamental misunderstanding of the purpose of NEPA, the
function of an EIS and the requirements of 40 C.F.R.
§1508.27(b)(4). As implemented by the CEQ regulations,
NEPA requires federal agencies to prepare an EIS when
48
faced with substantial conflicting opinions from experts.
NEPA’s objective would be frustrated if agencies were
allowed to disregard opposing opinions before conducting the
more rigorous investigation and analysis involved in the
preparation of an EIS.”°
B. Uncertainty --
40 C.F.R. § 1508.27(b)(5)
The CEQ regulations also mandate consideration of
the degree to which the effects of the proposed withdrawals
are "highly uncertain or involve unique or unknown risks."
40 C.F.R. § 1508.27(b)(5). Applying this regulation, other
courts of appeals have held that an agency faced with such
20 Compare Sierra Club v. U.S. Forest Service, 843 F.2d 1190,
1193 (9th Cir. 1988) (expert comments disputing an agency’s conclusion
that there will be no significant impact establish "precisely the type of
‘controversial’ action for which an EIS must be prepared") with Webb
vy. Gorsuch, 699 F.2d 157, 160 (4th Cir. 1983) (“conflicting expert
opinion . . . is for the administrative agency and not the courts to
resolve"). Both cases involved agency decisions not to prepare an EIS;
the latter fails to recognize the distinction between expert disputes while
an EIS is being prepared where the agency must resolve the conflict, and
expert disputes at the stage where the agency decides whether to prepare
an EJS and where it must apply the CEQ controversy test under 40
C.F.R. §1508.27(b)(4).
49
ne Nhe SR aed ARSON awl Rabin. Okt Deliae Bardi a at 2 Do ee!
uncertainty must prepare an EIS. See U.S. Forest Service,
- 843 at 1194; Jones v. Gordon, 792 F.2d 821, 829 (9th Cir.
1986); Foundation on Economic Trends v. Heckler, 756
F.2d 143, 153-54 (D.C. Cir. 1985); Foundation for North
American Wild Sheep v. U.S. Dept. of Agriculture, 681
F.2d 1172, 1182 n.47 (9th Cir. 1982).
The Corps recognized the uncertainty involved here.
JA 1813a, 1823a, 1838a. So did the District Court. 731 F.
Supp. at 1272, infra at 68a-69a (whether there will be dire
consequences in the event of a severe drought "remains to be
seen").
The extensive expert comments which questioned the
Corps’ views also demonstrate that the effects of this project
are highly uncertain. Moreover, the Court of Appeals
overlooked the important fact that Congress found that the
striped bass stock is being significantly affected by unknown
causes, and that the proposed pipeline project should be
reassessed after the Fish and Wildlife Service completes its
50
striped bass study later this year. P.L. 100-589, §5, 16
U.S.C. §1851 note (1988); P.L. 101-640, §413, 104 Stat.
4604, 4651 (1990). Congress would not have enacted such
legislation if it believed that the effects of this project were
certain. These acts of Congress, coupled with the comments
of the experts reflecting the controversy over the effects of
the project, demonstrate that the level of uncertainty required
the Corps to prepare an EIS.”!_ The opinion below is in
conflict with this binding CEQ regulation and with the
decision of other courts of appeals applying it.
71 The Court of Appeals stated that the commentors did not provide
enough “evidence” or "information" to support their views about the
potential environmental impacts of the proposed pipeline project. 940
F.2d at 63-64, infra at 15a. Aside from the fact that this view ignores
the extensive data and analyses submitted by commentors (see, e.g., JA
83la, 1363a-1389a, 1393a-1397a, 1413a-1416a, 1421a-143la, 1433a-
1468a, 1477a-1515a, 1537a-1540a, 1603a-1609a, 1915a-1919a) and the
congressional findings on this matter, it also overlooks the fact that the
impact of the project has not yet occurred. It is difficult to perceive what
further “evidence” of significant impacts the commentors were-required
to offer. Both the Corps and the experts who disagreed with the Corps
necessarily made informed predictions based upon their expertise in an
area of unusual complexity, controversy and uncertainty.
51
icsembantitesd iisanein Baten,
c. Cumulative Impacts --
40 C.F.R. §§ 1508.7
& 1508.27(b)(7)
The application by the Court of Appeals of the CEQ
regulation requiring agencies to consider cumulative effects
[40 C.F.R. §§ 1508.7 & 1508.27(b)(7)] before deciding
whether to prepare an EIS is in conflict with decisions of
other courts of appeals. The Court of Appeals held that the
Corps had discharged its duty in this respect by finding that
1) “the small effect of the City’s project on stream flows
should not have any significant effect on striped bass,” and
2) "any improvement in environmental conditions would be
[un]likely to improve the striped bass population.” 940 F.2d
at 65, infra at 23a.
In Hanly v. Kleindienst, 471 F.2d 823, 831 (2d Cir.
1972), cert. denied, 412 U.S. 908 (1973), the court ruled
that an agency must consider whether "even a slight increase
in adverse conditions that form an existing environmental
milieu may [be] significant." The Fifth Circuit in Fntiofson
52
y. Alexander held that an agency must consider "the overall
impact that can be expected if individual impacts are allowed
to accumulate" before deciding whether an EIS is required.
772 F.2d 1225, 1245 (1985)(emphasis added). In LaFlamme
vy. FERC, the Ninth Circuit held that the CEQ regulations
prohibit evaluation of a project’s impacts in isolation, and
require an analysis of the net impact that all existing and
reasonably foreseeable conditions may have on a basin’s
resources, before a decision not to prepare an EIS can be
justified. 852 F.2d 389, 402 (1988).
In this case, the Corps merely recited that several
factors (including flows, overfishing and water quality) may
affect striped bass. It concluded that “overfishing probably
was the principal reason for the collapse of this fishery." JA
1835a. Nevertheless, it found that the withdrawals could
affect striped bass if 1) there is a continuous relationship
between flow and striped bass recruitment and 2) overfishing
is stopped. Id.
53
A tee tin el abba yh lt
Pere eer weet
fe le Cre A eee ate Serena ome te SAE bet eS coseonn ees
Despite acknowledging that the withdrawals might
have an adverse effect on striped bass in the future, the
Corps made no effort to conduct a cumulative impact
analysis as mandated by 40 C.F.R. § 1508.27(b)(7) to
determine the overall impact of the proposed withdrawals
(even though they might be insignificant in themselves) when
added to all existing and reasonably foreseeable conditions
affecting striped bass.??_ Instead, it relied entirely on its
mitigation condition to obviate the need for such analysis.
JA 1835a-1838a.
-_
22 In approving this narrow view of the cumulative impact analysis
requirement, the Court of Appeals was clearly following its earlier
decisic xs on the issue. Gee v. Hudson, 746 F.2d 1471, 22 ERC 1213
(4th Cir. 1984) (Table No. 84-1172), cert. denied, 471 U.S. 1058 (1985)
(White, Brennan & Marshall, JJ., dissenting); Webb v. Gorsuch, 699
F.2d 157, 161 (4th Cir. 1983).
54
CONCLUSION
Seldom does a single opinion reach as many
conclusions that are in conflict with principles established by
this Court or with decisions of other courts of appeals as
does the opinion below. This case involves a matter of great
importance to Virginia and North Carolina -- the future use
of a substantial amount of water from an interstate water
system. More important, however, is the need for this Court
to address the unresolved conflicts over NEPA issues raised
by this case, as well as the unresolved conflict over the
obligation of federal agencies to make information available
to the public for review and comment before they reach final
decisions. The lower courts will continue to be in disarray
over these issues until such resolution occurs. This case
presents an excellent vehicle for that purpose. A writ of
certiorari should be granted.
55
Respectfully submitted,
ROANOKE RIVER BASIN ASSOCIATION
Patrick M. McSweeney
Counsel of Record
Michael V. Hernandez
McSWEENEY, BURTCH & CRUMP, P.C.
Post Office Box 1463
| 11 South Twelfth Street
Richmond, Virginia 23212
(804) 783-6800
STATE OF NORTH CAROLINA
Lacy H. Thornburg
Attorney General
Alan S. Hirsch
Special Deputy Attorney —_
General
N.C. DEPARTMENT OF JUSTICE
Post Office Box 629
Raleigh, N.C. 27602
(919) 733-5725
DATED: November 18, 1991
56
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROANOKE RIVER BASIN ASSOCIATION,
Plaintiff-Appellant,
and
STATE OF NORTH CAROLINA;
COUNTIES OF BERTIE, GRANVILLE,
HALIFAX, MARTIN, NORTHAMPTON,
VANCE, WARREN & WASHINGTON,
NORTH CAROLINA; COUNTIES OF
CHARLOTTE, HALIFAX & MECKLENBURG,
VIRGINIA,
Plaintiffs.
v. No. 90-3049
RONALD E. HUDSON, in his
official capacity as Norfolk
District Engineer, WAYNE A. HANSON,
in his official capacity as
Wilmington District Engineer;
JOSEPH K. BRATTON, LT. GEN., in his
official capacity as the Chief of
Engineers of the U.S. Army Corps of
Engineers; WILLIAM R. GIANELLI,
in his official capacity as Asst.
Secretary of the U.S. Dept. of the
Army; JOHN O. MARSH, in his official
| capacity as the Secretary of the U.S.
Dept. of the Army; THE CITY OF
la
VIRGINIA BEACH,
Defendants-Appellees.
NATIONAL WILDLIFE FEDERATION; NORTH
CAROLINA WILDLIFE FEDERATION,
Amici Curiae.
__ aan
STATE OF NORTH CAROLINA,
Plaintiff-Appellant,
and
COUNTIES OF BERTIE, GRANVILLE,
HALIFAX, MARTIN, NORTHAMPTON,
VANCE, WARREN & WASHINGTON,
NORTH CAROLINA; ROANOKE RIVER
BASIN ASSOCIATION; COUNTIES OF
CHARLOTTE, HALIFAX & MECKLENBURG,
VIRGINIA,
Plaintiffs.
v. No. 90-3050
RONALD E. HUDSON, in his
official capacity as Norfolk
District Engineer, WAYNE A. HANSON,
in his official capacity as
Wilmington District Engineer;
JOSEPH K. BRATTON, LT. GEN., in his
official capacity as the Chief of
Engineers of the U.S. Army Corps of
Engineers; WILLIAM R. GIANELLI,
in his official capacity as Asst.
Secretary of the U.S. Dept. of the
Army; JOHN O. MARSH, in his official
Capacity as the Secretary of the U.S.
Dept. of the Army; THE CITY OF
VIRGINIA BEACH,
Defendants-Appellees.
3a
NATIONAL WILDLIFE FEDERATION; NORTH
CAROLINA WILDLIFE FEDERATION,
Amici Curiae.
Appeals from
the United States District Court
for the Eastern District of North
Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CA-84-36-5-CIV-WE)
Argued: February 7, 1991
Decided: July 3, 1991
Before: HALL and NEIMEYER, Circuit Judges, and
KISER, United States District Judge for the Western District
of Virginia, sitting by designation.
Affirmed by published opinion, Judge Kiser wrote the
opinion, in which Judge Hall and Judge Neimeyer joined.
COUNSEL
ARGUED: Alan S. Hirsch, Special Deputy Attorney
General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellant State of
North Carolina; Patrick M. McSweeney, McSWEENEY,
Sa
BURTCH & CRUMP, P.C., Richmond, Virginia, for
Appellant Roanoke River Basin Association. George A.
Somerville, MAYS & VALENTINE, Richmond, Virginia;
Robert L. Klarquist, Lands and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Lacy H.
Thornburg, Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellant State of North Carolina; Michael V. Hernandez,
McSWEENEY, BURTCH & CRUMP, P.C., Richmond,
Virginia, for Appellant Roanoke River Basin Association.
John F. Kay, Jr., M. Scott Hart, Susan Warriner Custer,
MAYS & VALENTINE, Richmond, Virginia; George W.
Van Cleve, Acting Assistant Attorney General, Glen R.
Goodsell, J. Carol Williams, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Margaret
Person Currin, United States Attorney, Stephen A. West,
Assistant United States Attorney, Raleigh, North Carolina,
Leslie L. Willey, City Attorney, Jeffry A. Sachs, Assistant
City Attorney, CITY OF VIRGINIA BEACH, Virginia
Beach, Virginia; John R. Jordan, Jr., Robert R. Price,
JORDAN, PRICE, WALL, GRAY & JONES, Raleigh,
North Carolina, for Appellees. S. Elizabeth Birnbaum,
NATIONAL WILDLIFE FEDERATION, Washington,
D.C., for Amici Curiae.
Sa
OPINION
KISER, District Judge:
The State of North Carolina and the Roanoke River
Basin Authority have appealed a decision of the Army Corps
of Engineers to issue a permit to the City of Virginia Beach,
Virginia to construct a water intake structure and pipeline
that would divert sixty million gallons of water a day from
Lake Gaston, a lake that is part of the Roanoke River
system, approximately 85 miles to connect to Virginia
Beach’s water supply. Our review, like that of the district
court, is limited to a determination of whether the Corps’
decision was "arbitrary, capricious, otherwise not in
accordance with law, or unsupported by substantial
evidence." 5 U.S.C. § 706(2). We conduct the review
without giving deference to the district court’s decision.
VAGA v.- Donovan, 774 F.2d 89, 93 (4th Cir. 1985). We
affirm the district court’s findings that the Army Corps of
Engineers complied with all appropriate statutory provisions.
6a
ee re WTR ete ae.
I. Background’
Virginia Beach is the largest city in Virginia, and has
an inadequate supply of potable water. Aside from five
emergency wells intended for contingency use only, Virginia
Beach depends entirely on the City of Norfolk for its water.
The city has suffered from recurrent water shortages, and has
been forced to ration water on several occasions. After
considering several alternatives, Virginia Beach decided that
its best water source for the future would be a pipeline from
Lake Gaston.
On July 15, 1983, Virginia Beach applied to the
Norfolk District of the Army Corps of Engineers for a
permit to construct a water intake structure, pier, boathouse
and ramp in the Pea Hill Creek tributary of Lake Gaston in
Brunswick County, Virginia, and a sixty-inch inside diameter
' The procedural history and legal and factual background are set
forth in detail in two district court decisions in this case, North Carolina
v. Hudson, 665 F. Supp. 428 (E.D.N.C. 1987) (Hudson I), and 731 F.
Supp. 1261 (E.D.N.C. 1990) (Hudson II), and we will not undertake
repeating those details here.
Ta
concrete pipe to extend to Norfolk’s water treatment
facilities. The pipeline would carry up to sixty million
gallons per day (mgd). Eighty percent of the water would go
to the city of Virginia Beach, and the remainder to nearby
towns and counties. |
The pipeline, like all construction affecting navigable
waters within the United States, required permission from the
Army Corps of Engineers. 33 U.S.C. § 403. On October
11, 1983, the Norfolk, Virginia District Corps issued a draft
Environmental Assessment (EA) and a preliminary Finding
of No Significant Impact (FONSI) for public review and
comment. After holding three public hearings, and allowing
the required 30 day comment period, the Norfolk District
Corps issued the requested permit on January 9, 1984.
The pipeline would also require reallocation of
storage in Kerr Reservoir, upriver from Gaston Lake, from
power to water supply. This change required the approval
of the Wilmington, North Carolina District Corps of
8a
Engineers. On January 13, 1984, the Wilmington District
Corps adopted the EA prepared by the Norfolk District, and
issued a FONSI concluding that the proposed reallocation of
storage would have no significant environmental impact.
The State of North Carolina filed this suit on January
12, 1984, seeking to prevent the pipeline from being
constructed. The Roanoke River Basin Authority, eight
. counties in North Carolina and four counties in Virginia later
intervened as plaintiffs.
Virginia Beach initiated a declaratory judgment action
in the Eastern District of Virginia on January 9, 1984 (three
days before the North Carolina action was initiated), seeking
a declaratory judgment that the permit and contract were
valid. That action in transferred to the Eastern District of
North Carolina after this Court determined that the Virginia
district court had no personal jurisdiction over the Geverncr
of North Carolina, a named defendant. City of Virginia
Beach v, Hudson, 776 F.2d 484 (4th Cir. 1985). The action
9a
was later dismissed because Virginia had raised all of the
same arguments as an intervenor in the case filed by North
Carolina. Hudson I, 665 F. Supp. at 433.
On July 7, 1987, Chief Judge Britt issued his first
ruling. He approved most of the findings of the Corps, but
_remanded the matter to the Norfolk District Corps for further
inquiry on two issues; (1) to conduct an additional
investigation of the effects of the proposed project on
anadromous striped bass to determine whether an
Environmental Impact Statement (EIS) would be required;
and (2) to make a determination of the extent of Virginia
Beach’s water needs. Hudson I. In response to this order,
the Corps filed a pclae Environmental Assessment,
a Supplemental Statement of Findings (SSOF), and a Revised
Findings of No Significant Impact (RFONSI). The Corps
reissued the permit, adding a new mitigation condition to:
maintain sufficient flow during bass spawning season. On
February 2, 1990, Judge Britt issued a final decision
10a
fn ee ne tok
approving the permit. Hudson II. The matter is now ripe
for appeal.
Ii. nvironmen
A. Possible Impact on Striped Bass
Appellants challenge the Corps’ decision not to
prepare an EIS in light of the possible impact that the
pipeline might have on the striped bass population of the
Roanoke River. An EIS must be prepared for any "major
Federal action significantly affecting the quality of the human
environment." 42 U.S.C. § 4332. Ifa mitigation condition
eliminates all significant environmental effects, no EIS is
required. C.A.R.E. Now, Inc, v. F.A.A., 844 F.2d 1569,
1573 (11th Cir. 1988). The Corps has assumed that the
project is a major federal action, and we shall defer to this
determination. See Hudson I, 665 F. Supp. at 438. The
only issue, then is whether the withdrawal of 60 mgd from
Gaston Lake might significantly affect the environment.
lla
The Council on Environmental Quality has defined
the term "significantly." 40 C.F.R. § 1508.27(b).
"[(S]ignificantly” as used in NEPA requires
considerations of both context and intensity.
Appellants assert that three of ten listed measurements of
intensity are present in this case, and that these require that
an EIS be conducted.”
(4) The degree to which the possible effects
on the quality of the human environment are
likely to be highly controversial.
(5) The degree to which the possible effects
are highly uncertain or involve unique or
unknown risks.
(7) Whether the action is related to other
actions with individually insignificant but
cumulatively significant impacts. Significance
exists if it is reasonable to anticipate a
cumulatively significant impact on the
environment.
. Amicus claims that several other factors are also present. The
considerations required by the listed definitions tend to overlap, and the
evidence supporting amicus’ claim is essentially the same as that cited by
appellants.
12a
Appellants claim that the level of controversy concerning the
effect of the project on the striped bass population requires
an EIS. The Corps found that the mitigation condition
would eliminate the causes of the controversy. We find that
the Corps’ determination was supported by the record and,
therefore, is not arbitrary and capricious.
Since 1971, the Corps has required the operators of
upriver dams to release sufficient water to maintain Kerr
Lake at a level between 299.5 and 302 feet during spawning
season, which typically runs from April 26 to June 15. Kerr
Lake, in turn, releases to Gaston which, in turn, releases to
Roanoke Rapids. This release is intended to maintain a level
of 13 feet in the river at Weldon, downstream from Roanoke
Rapids Dam. J.A. 1807. In 1988, at the recommendation
of the Roanoke River Water Flow Committee,’ the increased
* The Committee was formed after the case was remanded to the
Corps for a further determination of the environmental impact on bass.
The district court noted that “the formation of a committee of ‘experts’
to deal with a question of the flow of water in a river without inviting
(continued...)
13a
flow period was augmented to run from April | to June 15,
and also modified so that flow levels more closely replicate
conditions prior to impoundment of Kerr Reservoir in 1953.
For a variety of reasons, the dam releases have sometimes
been insufficient to maintain the required flow levels on
some days during the augmented flow period. The Corps
determined that the best measure of possible impact on the
bass population of the pipeline would be the number of
additional "lost flow” days, where the river level is below
the required level. The Corps then found that the pipeline
would cause, at most, one additional "lost flow” day every
seven years, where the stream level would fall below the
prescribed limits under the 1971 standard. J.A. 1836.
The Corps believed that one lost flow day every seven
years would have no significant effect on the bass population.
3(.. continued)
the Corps, the acknowledged “expert” in such matters, raises some doubt
about the impartiality of the committee and the credibility of its
findings.” Hudson I], 731 F. Supp. at 1269. Nonetheless, the Corps
considered its recommendations in the SSOF. J.A. 1837-38.
l4a
Indeed, it pointed to some evidence suggesting that spawning
increases during years of relatively low flow. J.A. 1808.
However, it recognized that the effect of one additional low
flow day every seven years might be controversial and, if
this were to occur, an EIS might be required.
To avoid even a slight increase in the number of lost
flow days, the Corps directed that Virginia Beach use storage
water it purchased in Kerr meenreals (upstream from Gaston
Lake), instead of water already dedicated to the augmented
spawning flows, to offset all downstream effects of its
withdrawals. J.A. 1838. The Corps found that this
mitigation condition would eliminate all possible effects of
the pipeline. The district court found that the Corps’
mitigation condition is adequate to address any possible
environmental effects of the pipeline.
Appellants and amicus believe that the mitigation
condition is insufficient for several reasons. First, it
addresses only the problem of the number of low flow days.
1Sa
A continuous decrease of the flow by 60 mgd might affect
the bass population, even if the number of low flow days
was unchanged. Second, it assumes that sufficient storage
water will be available in Kerr Lake to maintain the lake
level. Finally, the mitigation condition was not made public
until the final report, so there was no opportunity for public
comment or criticism.
The Corps based its mitigation condition on an
entirely reasonable assumption: That the number of lost flow
days is the best measure of the effect of the pipeline on the
bass population. Plaintiffs generally supported this
assumption in the arguments that they submitted to the Corps
by focusing on lost flow days as being the decisive factor in
determining any adverse impact on the spawning season.
For example, the North Carolina Division of Marine
Fisheries asserted, "The loss of even the last day of a
spawning period could well result in production of a poor
16a
year class rather than a normal or exceptional year class."*
J.A. 830-31. The United States Fish and Wildlife Service,
the E.P.A. and the Sierra Club also filed comments based on
the same assumption. None of those commenting provided
evidence suggesting that the flow levels as currently set were
insufficient. The absence of evidence to the contrary
virtually compels the conclusion that a lower flow above the
required level will have no significant environmental affect.
The same organization suggested that "any loss of water
could have an extremely significant impact,” but it provided
no evidence to back up this claim.
The mitigation condition also does not address the
4 The Corps did consider this comment, and after examining the
supporting evidence, concluded that it was completely unsupported. J.A.
1810.
> Indeed, the modified flow regime introduced in 1988 reduced the
required flow through the April 26-June | period, while raising the level
for the April 1-25 period. This suggests that lowering the flow within
the augmented range is not considered to be problematic. The Corps also
found that very high flows “tend to be associated with lower juvenile
abundance indices.” J.A. 1809.
17a
problem that flow on days already lost will be even lower.
Again, all of those commenting assumed that a low flow day
was detrimental to bass spawning, and presented no
information on the effect of lowering the flow on days when
the level was already below the required amount. An issue
never presented to the Corps "must not be made the basis for
overturning a decision properly made after an otherwise
exhaustive proceeding.” Vermont Yankee Nuclear Power
Corp. v. NRDC, 435 U.S. 519, 558 (1976). The Corps’
failure to consider an effect that was not brought to its
attention cannot be faulted.®
Appellants and amicus also argue that in the event of
a prolonged drought, Virginia Beach’s storage capacity in
Kerr Lake might be insufficient to comply with the
© The Corps also argued in its brief with this Court that the
pipeline would have no effect at all on river levels during the lost flow
days. Because it did not make this argument in the RFONSI and the
other administrative rulings, it will not be considered here. Motor
Vehicle Manufacturers Ass’n v. State Farm Mutual Ins., 463 U.S. 29,
43 (1983).
18a
mitigation condition. Virginia Beach submitted a Project
Hydrologic Model to demonstrate that the greatest need for
water in the past 75 years would have required only 54% of
Virginia Beach’s storage capacity. J.A. 712-13. The Corps
verified this model, and found it to be persuasive. J.A. 1810.
This determination is not arbitrary and capricious.
Finally, appellants complain that the mitigation
condition was not available for public comment. This
objection is spurious. The proposed use of Virginia Beach’s
storage Capacity to augment the river’s flow was described in
the draft Supplemental Environmental Analysis that was
presented for public sisihiaiiia on June 6, 1988. J.A.
1065, 1071. The mitigation condition required Virginia
Beach to provide water, while the draft simply assumed that
the water would be available for that purpose. The Corps’
decision to make the mitigation condition mandatory means
that the modified permit protects the appellants’ interests (and
the striped bass) more completely than the proposal available
19a
for comment.
Several of those commenting from North Carolina,
and two federal agencies, the Fish and Wildlife Service and
the National Marine Fisheries Service, believed that the
effect on the striped bass population is sufficiently uncertain
that an EIS should be conducted. Appellants argue that the
fact that disinterested federal agencies request that an EIS is
proof that the effect is “controversial,” so that the Corps
abused its discretion in refusing to commission an EIS.
However, the existence of a disagreement as to whether an
EIS should be commissioned is not by itself grounds for a
court to require an EIS. Rucker v. Willis, 484 F.2d 158,
162 (4th Cir. 1973). The Corps of Engineers should
consider the comments of other agencies, but it need not
defer to them when it disagrees. The Corps addressed the
specific comments of the other agencies, and explained why
it found them unpersuasive. No more is required.
20a
B. Effect on Water Quality
Appellants’ claim that the Corps did not adequately
consider the effect of the pipeline on downstream water
quality is also without merit. The Corps based its conclusion
on the fact that there would be no quality affect on
conditions during times of relatively low flow, as well as
average flow conditions. J.A. 174. It found that the
withdrawal may increase the total number of days with
relatively iow flow, but that the effect on the quality of the
water would be insignificant. J.A. 174. This finding is
supported by the record, and is not arbitrary and capricious.
Although there may be some impact, if it is not significant,
then an EIS is not required. 42 U.S.C. § 4332(C)(2);
Hudson I, 665 F.Supp. at 439.
2la
i Failure to Consider Cumulative
I F Withd
40 C.F.R. §1508.27(b)(7) requires that the Corps
consider whether a project’s environmental effects may be
cumulatively significant in conjunction with other
environmental conditions that are reasonably foreseeable,
even if they are not significant by themselves. Appellants
and amicus assert that the Corps failed to make this analysis,
and that the cumulative effect of this withdrawal of water, in
conjunction with anticipated growth of irrigation, population
and industry in the Roanoke River basin, may have a
significant effect on water quality.
In fact, the Corps did consider whether there would
be an cumulative effects on water quality. It concluded that
the effects of the withdrawal of water, coupled with
anticipated downstream pollution, would not be significant.
J.A. 174. It further found that additional pollution in the
Roanoke River was not reasonably foreseeable, and that there
22a
was not reason to believe that irrigation withdrawals from the
river would increase in the future. J.A. 1843. -All of these
findings are adequately supported by the administrative
record, and are neither arbitrary nor capricious.
Plaintiffs and amicus argue that the Corps failed to
consider the cumulative effect of the pipeline on the striped
bass population. They note that the striped bass population
has been declining for some time, in part, because of
overfishing. It claims that even if the pipeline’s effect on
bass population might be insignificant in itself, it may
exnouibege the overfishing and other stresses on the bass.
The Corps fully considered this sei in the SSOF.
It found that because of the overfishing, "the small effect of
the City’s project on stream flows should not have any
significant effect on striped bass." J.A. 1835. It further
found that any improvement in environmental conditions
would be likely to improve the striped bass population.
There is adequate basis for this finding in the record, and it
23a
is not arbitrary and capricious. The Corps has discharged its
duty to consider the cumulative effects of the pipeline with
other existing or foreseeable environmental conditions.
D. —— ,
The appellants claim that the computer model used by
the Corps was made available to the public only days before
the end of the comment period on the proposals. This
alleged failure to disclose information made a challenge to
the model more difficult to prepare. The appellants concede,
however, that they received the computer model shortly
before the public comment period ended. They have not
explained what use they expect to make of the "the complete
articulation of underlying modeling assumptions" that they
claim they have never received. It is clear from the record
that appellants had ample information available to them to
mount a challenge to the Corps’ permit. For example, they
were able to form a committee of experts, the Roanoke River
24a
Water Flow Committee, working without assistance from the
Corps, that created its own models and made
recommendations on river flow that were fully considered by
the Corps. Hudson II, 731 F.Supp. at 1269. We are
satisfied that the appellants were not prejudiced by any
slowness or incompleteness in the Corps’ disclosure of
modeling information.
III. Public Inter
Appellants also assert that the Corps failed to consider
the public interest impact of the pipeline in North Carolina,
in violation of 33 C.F.R. § 320.4(a). The public interest
analysis conducted by the Corps examined estimates of the
population growth for Virginia Beach over the next 40 years,
and concluded that the pipeline ones will be necessary to
meet the needs of Virginia Beach’s fast-growing population.
J.A. 1842. The district court examined the same data, and
concluded that even with the pipeline, Virginia Beach may
25a
soon find itself with an inadequate water supply. Hudson II,
731 F.Supp. at 1272.
Appellants argue that the Corps acted in an arbitrary
and capricious manner when It considered future population
growth of Virginia Beach, but not future increased water
needs downstream in North Carolina. However, the Corps
considered future needs in North Carolina in both the
original SOF and the SSOF it wrote on remand. It found in
1984 that although large corporations were considering
building a wood pulp plant and a coal-burning power plant
along the Roanoke River, these projects were not firmly
committed. J.A. 191. Accordingly, it would be
inappropriate to consider the impact of the pipeline on these
projects. On reconsideration in 1988, the Corps found that
the coal burning plant would not be built, and that the paper
manufacturer "is not appreciably closer to deciding to
construct a new plant.” J.A. 1843. It, therefore, again
concluded that it was not reasonably foreseeable that these or
26a
any other industrial plants would be appreciably affected by
the pipeline. It also found that the need for water for
agricultural irrigation varied widely from year-to-year, but
that because the principle irrigated crop is tobacco, a crop
for which acreage is controlled by the federal government,
it was not reasonable that agricultural irrigation would be
affected by the new plant.
Appellants’ claim that the Corps considered growth
only in Virginia Beach and not in North Carolina is
incorrect. it considered the potential for growing water
needs in both areas, and concluded that increased need was
foreseeable for Virginia Beach, and not reasonably
foreseeable for North Carolina. This finding is adequately
supported by facts in the record, and is not arbitrary and
capricious. North Carolina’s objection appears to be that if
Virginia Beach builds the pipeline, then 60 million gallons of
water a day will be unavailable for future use in North
Carolina at some point in the far future. This is true, but it
27a
is insufficient to stop the project. The Corps properly
discharged its duty to conduct a public policy review.
IV. Conclusion
Gaston Lake pipeline is a controversial project
because it will remove a substantial amount of water from
one river basin to a distant area. However, there is no
longer any controversy concerning either the environmental
effects on the Roanoke River, or the need for a new supply
of water in Virginia Beach, in both absoluie terms and
relative to the needs of northeastern North Carolina. The
Army Corps of Engineers properly considered all factors that
it was required to consider before issuing a permit. Its
decision to issue a permit for the project shall not be
disturbed.
28a
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
No. 84-36-CIV-5
STATE OF NORTH CAROLINA,
et al.,
plaintiffs,
v. MEMORANDUM
OPINION
COLONEL RONALD E. HUDSON,
et al.,
defendants.
The City of Virginia Beach, Virginia is seeking
permission from the United States Corps of Engineers (the
Corps) to construct a sixty-inch pipeline some 84.5 miles
across southern Virginia and withdraw up to 60 million
gallons of water per day (mgd) from Lake Gaston for the
purpose of meeting its municipal water supply needs. After
the Corps made a decision to issue the permits needed by
Virginia Beach to accomplish the project, this action was
begun by the State of North Carolina, the Roanoke River
29a
Basin Association (RRBA) and several counties in Virginia
and North Carolina for judicial review of the decision of the
Corps. Thereafter, this court conducted a review of the
Corps’ decision and rendered a decision on 7 July 1987,
State _of North Carolina _v. Hudson, 665 F.Supp. 428
(E.D.N.C. 1987).
I. PROCEDURAL HISTORY
After a thorough review of the Administrative Record
and consideration of the arguments and briefs of all parties,
the court remanded the matter to the Corps. The court’s
decision was very specific on the scope of the further review
which was mandated:
On remand, the Corps shall:
1. Asa part of its NEPA review make
an independent assessment of the effects of
the proposed project on striped bass to
determine whether the preparation of an EIS
[Environmental Impact Statement] is requried
or whether any mitigative measures are
necessary; and,
2. As a part of its public interest
30a
review make a determination of the extent of
Virginia Beach’s water needs.
Hudson, 665 F.Supp. at 450.
All other objections by plaintiffs to the decision’ of
the Corps were rejected. The court retained jurisdiction and
directed the Corps to file with the court the results of its
reconsideration and the record supporting its decision. The
Corps has complied and the matter is now before the court
for review of the supplemental record.”
The record includes a Supplemental Environmental
Assessment (SEA), a Supplement Statement of Findings
(SOF) and a Revised Finding of No Significant Impact
, Actually there were two decision of the Corps under review.
One, by the Norfolk District, to issue a permit to construct a water
intake structure and pipeline in Lake Gaston to extend to Suffolk,
Virginia, and the other, the Wilmington District, to enter into a water
storage reallocation contract for Kerr Reservoir.
> The record consists of twenty-three volumes of material consisting
of 165 documents, most of which are multi-page. In addition, the parties
have, by stipulation, added another three volumes containing in excess
of fifty documents. One of the briefs filed with the court suggests that
the record compiled on remand is twice the size of the original record.
3la
(RFONSI).* The Corps concluded that Virginia Beach’s
withdrawal of water from Lake Gaston will have no
significant impact on the human environment, that an
environmental impact statement (EIS) is not necessary, and
that the amount of the proposed withdrawal, 60 mgd, is
needed.
II. BACKGROUND
In order to evaluate the potential for harm to the
striped bass population from the withdrawal of water from
Lake Gaston, it is necessary to understand the Roanoke River
Basin and its interconnected system of lakes as well as the
history and habits of striped bass.
3 The Norfolk and Wilmington Districts each filed a RFONSI
addressing their separate areas of responsibility, although the Wilmington
District based its RFONSI on the Norfolk District’s findings.
32a
A. THE ROANOKE RIVER SYSTEM
The Roanoke River is formed at the confluence of the
North and South Forks in Montgomery County, Virginia and
flows generally in a southeasterly direction until it empties
into the Albemarle Sound in northeastern North Carolina.
Dams have been constructed on the river for both flood
control and hydroelectric purposes, resulting in the formation
of many lakes, the lower three of which, Kerr, Gaston and
Roanoke Rapids, are important for this discussion. (Philpott
and Smith Mountain are upstream from Kerr and are not
directly affected by the project, although the amount of water
released from them does affect the amount of water in the
Kerr Lake Reservoir.) Kerr Lake (also known as Buggs’
Island Lake) lies mostly in Virginia and is controlled by the
Wilmington District of the Corps. Lake Gaston, just
downstream of Kerr, lies mostly in North Carolina and is
controlled by Virginia Power Company (VEPCO). Roanoke
Rapids Lake is entirely in North Carolina, lies downstream
33a
of Gaston, and is also controlled by VEPCO.
By use of the dams, the flow of water can be
restricted from the natural flow of the river during times of
flood or high water conditions and increased during drought
or low water conditions. Thus, more uniformity in stream
flow can be accomplished than would occur naturally.
Nevertheless, wide fluctuations still occur.
All three of the dams are operated primarily for peak
power projection although other goals -- flood control, lake
levels, and river flow -- are also considered. It is the flow
of the river below the last dam, Roanoke Rapids, that is of
primary con-ern when considering the impact of the project
on striped bass. As the flow of the river below Roanoke
Rapids Dam is entirely dependent on natural rainfall and
releases from the lake at the dam, the river theoretically, of
course, could dry up. This condition is prevented, however,
by the license issued to VEPCO by the Federal Energy
Regulatory Commission (FERC) which requires minimum
34a
releases at the Roanoke Rapids Dam in amounts which vary
throughout the year. Releases of at least 1,000 cubic feet per
second (cfs) are required from November through March,
2,000 cfs from April through September, and 1,500 cfs in
October. VEPCO always has enough water to meet these
requirements because the Corps is required by hydropower
contracts with VEPCO and Carolina Power & Light Co.
(CP&L) to make releases which, when combined with
natural drainage into Lake Gaston and Roanoke Rapids Lake,
average at least 545 cfs (352 mgd) more than VEPCO’s
minimums during every month of the year. Depending on
its Own power generation needs, VEPCO may store this
surplus in Lake Gaston and Roanoke Rapids Lake for short
periods of time and release it during peak electricity demand
hours. The average flow of water through Roanoke Rapids
Dam is 8,153 cfs.
The flow of water at Roanoke Rapids Dam is
augmented during the striped bass season pursuant to the
35a
terms of a 1971 Memorandum of Understanding (MOU)
among the Wilmington District of the Corps, VEPCO and
the North Carolina Wildlife Resources Commission
(NCWRC). Under this agreement the Corps is required to
release stored water in Kerr Lake between elevations of
299.5 and 302 feet, mean sea level, during the spawning
season so as to maintain, when possible, a minimum stage of
13 feet below the Roanoke Rapids Dam. This release equals
an outflow from the Roanoke Rapids Dam of approximately
5700-6000 cfs. The agreement require the augmented flow
for a period of 50 days, which lasts from approximately 26
April until 15 June, although NCWRC determines the exact
date.
Kerr is the largest of the three lakes and is the
primary storage facility in the system. In an average year,
Kerr’s level fluctuates 12 feet, but in any given year it may
fluctuate by as much as 27 feet, between elevations of 293
36a
and 320 feet. The Corps makes every effort to maintain
Kerr’s level at the 293 minimum, but it is occasionally
unable to do so and still releases the amounts required by its
contract with the power companies. At those times, if the
power companies agree, the Corps releases only enough
water from Kerr to meet VEPCO’s required releases at
Roanoke Rapids.
B. STRIPED BASS
The anadromous’ striped bass® is an important sport
and commercial fish native to the eastern seaboard, thriving
in both salt and fresh water. They migrate in spring from
their natural habitats in the sounds and ocean up rivers and
streams to spawn. Each year this ritual is repeated by striped
4 320 feet is the top of the spillway at Kerr Lake.
° To distinguish from the landlocked striped bass found in Kerr
Lake.
© Also known as Rockfish.
37a
bass migrating from the Albemarle Sound up the Roanoke
River to the vicinity of Weldon, just downstream from the
Roanoke Rapids Dam, where the eggs are laid. It is thought
that successful spawning is dependent upon higher-than-
normal river flows as the turbulence caused by the high
water keeps the eggs buoyant until they become hardened and
naturally attain near-neutral buoyancy.’
There has been a significant decline in the population
of striped bass for many years. The problem has been
addressed by governmental and private groups on the state
and national level in an effort to stope the decline of, and
hopefully restore, this valuable natural resource. No
consensus has been reached on the cause or causes of the
decline although pollution, fishing pressure and interference
with the spawning process are thought to be major
7 This principle was stated as a fact in the original record before
the court but the validity of the thesis seems to be questioned in the
Supplemental Record (SR). See SEA, SR 157.
38a
contributors.
I. SUPPLEMENTAL ENVIRONMENTAL
ASSESSMENT
The SEA filed by the Corps analyzes all of the
materials collected and concludes that the withdrawal by
Virginia Beach of up to 60 mgd from Lake Gaston will have
no impact, let alone a significant impact, on the spawning of
striped bass in the Roanoke River. Colonel Thomas,® the
district engineer of the Corps’ Norfolk District, separately
addresses some of the factors which have been suggested to
have had some effect on the decline of the population of
striped bass. His analysis of the data presented makes a
convincing argument that the primary cause of the decline is
overfishing. By correlating and anal: zing data concerning
the rate of flow at Roanoke Rapids Dam, he demonstrates
that "[t]he conventional thinking for years... that more
water is better . . . may not have been entirely beneficial to
8 Colonel J.J. Thomas, successor to Colonel Hudson.
39a
the striped bass." SEA, SR 157, p. 4. He also effectively
rebuts the suggestion that fluctuations in the rate of ilow
probably had an adverse effect on spawning activity.
To plaintiffs’ contention that the loss of even one day
of the minimum augment flow could have a severe impact on
the success of spawning, Colonel Thomas demonstrated
through data analysis that spawning has historically been
practically completed by the first of June and concluded that
"[t]heoretically, the period from June 1-June 15 could be lost
from the end of a spawning season with a subsequent loss of
only 1% of the spawned eggs, on average." SEA, SR 157,
p. 6.
The 1983 Final Environmental Assessment (FEA),
based on a model of the City of Virginia Beach, stated that
the project would cause a loss of the last day of the spawning
flows in one out of four years and the last two days once out
of 25 years. Following, remand, Virginia Beach offered to
utilize the volume of storage in Kerr Lake which it purchased
40a
from the Corps in such a way as to eliminate the loss of any
days of spawning flows due to its project. The SEA makes
note of this offer and states further:
To demonstrate this capability, the
Wilmington District prepared a mathematical
hydrologic model of the river and reservoirs
using daily flow records for the period of
record. This model showed that the City’s
project (without using the City’s storage in
Kerr Reservoir) would cause a loss of the last
day of the spawning flows in one out of seven
years and no years with a loss of two days or
more. (It should be noted that this last day
may well occur prior to June 15, since 50
days of flow are not always available.) The
small extent of the impact is due mainly to the
small size of the City’s withdrawal (60 mgd
maximum) compared to the spawning season
flows (6000 cfs = 4000 mgd). Use of the
City’s storage to restore lost days caused by
the project would result in a maximum
drawdown not exceeding 0.15 foot within
Kerr Reservoir from elevation 299.5 feet to
299.35 feet on the average of once every
seven years.... This volume of water is so
mall in comparison to the volume of the three
reservoirs that even during the worst drought
of record, coinciding with complete
compensation from the City’s storage in Kerr
during an entire 50-day spawning period, and
at the maximum withdrawal rate (60 mgd),
flows from the Roanoke Rapids dam would
4la
never be caused to drop below their FERC
minimums at any later time during the
drought. Water levels would not be affected
in either the Gaston or Roanoke Rapids
reservoirs, and the maximum drawdown due
to the project in Kerr Reservoir would be only
an additional 0.15 foot. It is apparent, then,
that the City’s project would have no effect on
Virginia Power’s ability to meet FERC
minimum releases and that, with the use of
Virginia Beach’s storage, all project effects on
flow during the striped bass spawning season
can be eliminated.
SEA, SR 157, p.6.
SUPPLEMENTAL STATEMENT OF FINDINGS
The SSOF filed by the Corps in response to this
court’s order of 7 July 1987 states that all available
information, including data contained in the SEA and
comments received from federal, state and local agencies,
and the general public had been evaluated. The SSOF
contains a summary of the evaluation and the Corps’
conclusion. Most important to this review is the conclusion
by Colonel Thomas that any environmental impacts "would
42a
be non-significant in the context of NEPA.” SEA, SR 158,
p.10. Colonel Thomas further states:
However, it is appropriate for me to consider
what would happen if I’m wrong. I recognize
that striped bass are an important resource in
North Carolina and elsewhere, and that much
effort has been directed by Congress and
Federal and State agencies toward their
restoration. I also recognize that this project
has received a tremendous amount of public
attention over the last few years, and that
public perception may be a legitimate concern
even when it is not supported by fact.
Therefore, I find it appropriate to amend the
City’s permit to require as a condition that
they must allow the Wilmington District,
Corps of Engineers to utilize the storage
which the City has purchased in Kerr
Reservoir during the period of the striped bass
augmented spawning flows to not cause the
loss of any augmented spawning flow days
which would otherwise be caused by the
City’s withdrawal. By completely
compensating for their withdrawal during the
spawning season, this will virtually eliminate
the possibility of any adverse effects of even
minimal significance which this project could
cause during the critical life stages of the
Roanoke/Albemarle striped bass.
SSOF, SR 158, p.10.
43a
V. THE CORPS’ NEED ANALYSIS
Upon remand the Corps invited submissions regarding
water supply analyses and projections of deficits for Virginia
Beach (the Norfolk water system) and Southside Hampton
Roads through the year 2030. The State of North Carolina,
the City of Virginia Beach and the Virginia State Water
Control Board responded. These submissions were evaluated
by the Corps which concluded that Virginia Beach’s need is
at least the 60 mgd for which a withdrawal permit is sought.
Colonel Thomas placed great reliance on a 1984 study by the
Corps which found a 55 mgd deficit in Hampton Roads and
in the James Water Supply Plan of the Virginia State Water
Control Board which found a 2030 deficit in the Norfolk -
Virginia Beach - Chesapeake - Portsmouth - Suffolk area of
between 49 and 81 mgd. With regard to the latter study the
SSOF stated:
The water system of these five cities represent
the total pool of existing supplies from which
Virginia Beach’s needs could be met. The 49
44a
mgd figure represents that amount of water
which would be needed to avoid "storage
depletion” (i.e., running completely out of
water after having instituted voluntary
conservation, followed by mandatory water
use restrictions, followed by rationing). The
81 mgd figure represents the amount needed
to avoid having to impose any but voluntary
conservation. These figures also assume that
the distribution systems of the entire five-city
area would be completely interconnected and
that each city would fully share all of its
water with all of its neighbors. The former is
correct in large part already, and further
interconnection will encounter problems with
diminishing returns. The different water
sources and the independent operation of the
municipal utilities would tend to preclude the
total and equal sharing of water that can be
achieved with complete efficiency only in
theory. For these reasons the actual five-city
deficits will probably be slightly more than
these theoretical deficits projected by the
Board.
SSOF, SR 158, p. 13.
VI. APPLICAB ATUT RE ATION
As the court stated in its prior review, four statutes
and their implementing regulations are pertinent: The Rivers
45a
and Harbors Appropriation Act of 1899, 33 U.S.C.A. § 403
(1986); the Clean Water Act, 33 U.S.C.A. §§ 1251-1376
(1986); the Water Supply Act of 1958, 43 U.S.C.A. §§
390b-390f (1986); and the National Environmental Policy
Act of 1969 (NEPA); 42 U.S.C.A. §§ 4321-4347 (1977).
Pursuant to section 10 of the Rivers and Harbors Act of
1899, 33 U.S.C.A. §403 (1986), the Corps of Engineers is
responsible for evaluating proposed construction projects in
the navigable waters of the United States. seo 404 of the
Clean Water Act, 33 U.S.C.A. § 1344 (1986), gives the
Corps jurisdiction to issue permits for the discharge of
dredged or fill materials into the navigable waters of the
United States. The Water Supply Act authorizes the Corps
to reallocate water storage in federal reservoirs such as Kerr
Reservoir. 43 U.S.C.A. § 39b (1986). In exercising the
authority granted by these three statutes, the Corps must also
comply with the prerequisites of NEPA.
46a
A. NEPA
Congress enacted NEPA to oblige federal agencies to
consider the environmental consequences of proposed actions
in the decision-making process, thereby insuring "fully
informed and well-considered" decisions. Strycker’s Bay
Neighborhood Council, Inc, v. Karlen, 444 U.S. 223, 228
(1980) (per curiam) (quoting Vermont Yankee Nuclear
wer Vv i .
435 U.S. 519, 558 (1978)). Pursuant to section 102(2)(C)
or the Act, 42 U.S.C.A. § 4332(2)(C), a federal agency has
the duty to prepare a detailed environmental statement,
known as an environmental impact statement (EIS), on every
major federal action significantly affecting the quality of the
human environment. In order to determine which actions
trigger this provision, the Corps has promulgated regulations
to implement NEPA, 33 C.F.R. pt. 230 (1986). The Corps
is Simultaneously governed by the Council on Environmental
Quality (CEQ) regulations construing and implementing
47a
NEPA, 40 C.F.R. pis. 1500-1508 (1986).
These implementing regulations outline Corps
procedure for evaluating a proposal. Before issuing a permit
the Corps must prepare an environmental assessment (EA) to
determine whether the proposed action would significantly
affect the quality of the human environment, thereby
requiring preparation of a comprehensive EIS. 33 C.F.R.
pt. 230, app. B(8)(a). Typically, the EA is a brief
evaluation, normally not exceeding fifteen pages, of the
likely environmental effects of a proposal, the need for and
the alternatives to the proposed action. 33 C.F.R. §230.9(c)
and 33 C.F.R. pt. 230, app. B(8)(a). When the district
engineer concludes that a project will not significantly affect
the quality of the human environment, he must prepare a
FONSI presenting the reasons for this conclusion. 33
C.F.R. § 230.10 and 33 C.F.R. pt. 230, app. B(8)(c).
48a
B. | PUBLIC INTEREST REVIEW AND OTHER
CORPS REGULATIONS
In addition to the regulations implementing NEPA,
the Corps has adopted regulations which serve as guidelines
for the evaluation of all regulatory permit applications. 33
C.F.R. pt. 320 (1986). Chief among these regulations in 33
C.F.R. §320.4(a) which requires the Corps to undertake a
general "public interest review" to decide whether a permit
should issue. In this review the Corps must evaluate a
proposal’s overall impact on the public interest, balancing the
"benefits which reasonably may be expected to accrue...
against its reasonably foreseeable detriments." 33 C.F.R.
§ 320.4(a).
The decision whether to issue the permit depends on
the outcome of this balancing of factors. A permit is to be
granted unless the district engineer determines that it will be
contrary to the public interest. 33 C.F.R. §320.4(a)(1).
When the decision on the permit application is made the
49a
district engineer must include the results of his public interest
review in the Statement of Findings, a document which must
be prepared in all permit decisions not requiring preparation
of an EIS. 33 C.F.R. § 325.2(a)(6) (1986).
Vil. CONTENTIONS
Both North Carolina and RRBA devote most of their
arguments to the striped bass issue. Each contends that the
Corps’ analysis is flawed and not supported by expert
opinion. They argue that the Corps failed to utilize data on
a new flow regime using instead an outdated flow regime.
The Corps’ conclusions regarding the effect of fishing on the
striped bass problem are disputed, and the Corps is taken to
task for failing to consider cumulative impacts in its analysis.
- RRBA also contends that the Corps ignored important
findings by the United States Congress. Additionally, both
parties attack the Corps’ determination of the extent of
Virginia Beach’s need.
50a
VIII. STANDARD OF REVIEW
The applicable review standard is found in the
Administrative Procedure Act which provides in pertinent
part:
The reviewing court shall --
(2) hold unlawful and set aside agency
action, findings, and conclusions found to be -
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law;
(D) without observance of procedure
required by law.
5 U.S.C.A. § 706(2)(A) & (D) (West 1977). An
interpretation of this standard must begin with the Supreme
Court’s decision in Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402 (1971). In Overton Park the
Supreme Court made clear that the court’s obligation
pursuant to this statute is twofold. The court must consider,
Sla
first, whether the agency acted within the scope of its
authority, and second, whether the actual choice made by the
agency was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. To make this finding
the court must consider whether the decision was based on a
consideration of the relevant factors and whether there was
a clear error of judgment. This standard of review is highly
differential and the agency decision is "entitled to a
presumption of regularity." Overton Park, 401 U.S. at 415.
The agency must examine the relevant data and
articulate a satisfactory explanation for its action, including
a "rational connection between the facts found and the choice
made." man_T ] Vv nsas-
Freight Systems, Inc., 419 U.S. 281, 285 (1974), reh’g
denied, 420 U.S. 956 (1975) sniiiities a
Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
Furthermore, the court may not supply a reasoned basis for
the decision that the agency has not given. Bowman
52a
Transportation, 419 U.S. at 285-86. In Motor Vehicles
Mutual Auto Insurance Co., 463 U.S. 29 (1983), the court
said:
[A]n agency rule would be arbitrary and
capricious if the agency has relied on factors
which Congress has not intended it to
consider, entirely failed to consider an
important aspect of the problem, offered an
explanation for its decision that runs counter
to the evidence before the agency, or is so
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.
Id. at 43.
In reviewing whether the agency has complied with
the requirements of NEPA, the only role for the court is to
insure that the agency has taken a "hard look" at the
environmental consequences; it cannot "interject itself within
the area of discretion of the executive as to the choice of the
action to be taken." Kleppe v. Sierra Club, 427 U.S. 390,
410 n. 21 (1976). In enacting NEPA, Congress did not
53a
require agencies to elevate environmental concerns over other
appropriate considerations. Baltimore Gas & Electric Co. v.
Natural Resources Defense Council, Inc., 462 U.S. 87
(1983). In applying the arbitrary and capricious standard to
NEPA determinations, the court must engage in a substantial
inquiry to determine whether the agency, in its conclusions,
made a good faith judgment, after considering all relevant
factors, including possible alternative or mitigative measures.
lien tr 2 thle Besicast Dew ‘
Coleman, 555 F.2d 398 (4th Cir. 1977). In passing on the
good faith issue, ihe court may not substitute its judgment for
that of the agency but must only look to see if the official or
agency too a hard look at all relevant factors. In considering
alternatives, the agency need only set forth those alternatives
sufficiently so as to permit a reasoned choice. Coleman, 555
F.2d at 400.
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IX. ANALYSIS
A. EFFECT OF THE PROJECT ON
STRIPED BASS
i. The Effect of River Flow
Plaintiffs contend that the conclusions reached by the
Corps are at odds with the conclusions of the National
Marine Fisheries Service (NMFS), the U.S. Fish and
Wildlife Service (USFWS), the North Carolina Wildlife
Resources Commission (NCWRC) and the North Carolina
Division of Marine Fisheries (NCDMF), all of whom
submitted comments to the Corps. Plaintiffs further contend
that the Corps’ analysis is flawed because it used the "old
flow regime” instead of a new one. The “flow regime”
refers to the flow at the Roanoke Rapids Dam during the
spawning season which, as noted earlier, is a period of time
when the FERC mandated flow is highest and the flow is
augmented by the additional water provided under the MOL.
Plaintiffs contend that this regime is outdated and needs to be
55a
changed. Indeed, such is the argument of officials from the
four agencies named above, a fact acknowledged by the
Corps.
After remand of the matter to the Corps in 1987, the
Roanoke River Water Flow Committee (committee) was
formed. The committee consists of representatives of the
four wildlife agencies, a representative from the North
Carolina Department of Agriculture and fisheries biologists
from North Carolina State University and East Carolina
University. Apparently, none of the Corps’ experts were
asked to serve as members of the committee, although a
representative from the Corps was asked to, and did, serve
as an "advisor" to the committee. This committee collected
data and concluded that the 1981 flow regime was inadequate
and that flows much greater than the 2,000 cfs FERC
minimum are necessary before the beginning of the spawning
season in order to attract mature bass to the spawning
grounds and to provide satisfactory conditions for the growth
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of plankton, the food source for young striped bass. In
addition, the committee concluded that increased flows are
necessary during the spawning season to stimulate the fish to
release their eggs and after spawning season to transport eggs °
and larvae to their feeding grounds. These findings led the
committee to conclude that an increased period of augmented
flow was necessary. Its first recommendation was for
augmented flow for a period of 122 days between 1 March
and 30 June, ranging from 7543 cfs in March to 3058 cfs at
the end of June. After consultation with the Corps and
VEPCO, however, these dates and rates of flow were revised
downward to provide for lower flows for a shorter period of
time.
In the SSOF, Colonel Thomas made note of and
commented upon submissions of the committee and the
various agencies and acknowledged that "different
conclusions can and have been reached from the same raw
data.” He agreed with some conclusions by the committee
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and disagreed with others. Important to this analysis is the
fact that he considered all conclusions. Nothing more was
required. The fact that the Corps did not change its decision
based on those conclusions does not make the decision
arbitrary or capricious. The court finds the Corps’ decision,
in this respect, to be in accordance with the requirements of
the law. The court is particularly impressed with the fairness
-- the lack of arbitrariness -- in the Corps’ treatment of each
contention advanced by plaintiffs based on work of the
committee. This treatment is especially commendable in
view of the fact that those who formed the committee did not
show the same courtesy to the Corps, either in the formation
of the committee or in its functioning. The formation of a
committee of "experts" to deal with a question of the flow’
of water in a river without inviting the Corps, the
9 Even the name of the committee, The Roanoke River Water Flow
Committee, suggests that its primary function is to deal with the flow of
water in the Roanoke River!!
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acknowledged "expert" in such matters, raises some doubt
about the impartiality of the committee and the credibility of
its findings. The timing of the committee’s formation
increases those doubts.
Casting aside any doubts arising out of formation of
the committee, however, the court is impressed with the
thoroughness and impartiality of the Corps’ analysis.
Especially when given the presumption of regularity to which
the Corps’ decision is entitled, see Overton Park, 401 U.S.
at 415, the court is convinced that the Corps has adequately
examined the data and articulated a satisfactory explanation
for its decision.
: There can be no doubt that the flow of the Roanoke
River, especially at the Roanoke Rapids Dam, has some
effect on the success or failure of the reproduction of striped
bass. If this valuable resource is to survive, and particularly
if it is to regain its former population level, the best efforts
of all interested parties, including state and federal agencies,
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must be asserted. Those efforts have been going on for
many years now and they must continue. The court hopes
that one benefit of this massive and time-consuming lawsuit
will be to focus increased attention on the importance of this
natural resource. Interruptions in the delicat. balances of
nature, whether through pollution, use and abuse of resources
such as water, or through other causes, invariably take a
heavy toll on natural resources, particularly fish and wildlife.
Separate and apart from the work of the committee,
plaintiffs contend that the Corps erred by not accepting the
recommendations of the four expert agencies most directly
concerned with strived bass, USFWS, NMFS, NCDMF and
NCDWR, all of whom expressed the view that a full
environmental impact study should be conducted and an EIS
prepared.'° As noted in this court’s prior opinion, Corps
10 It is at least questionable whether this view prevails when the
mitigation requirement is considered as only one of the agencies,
USFWS, addressed mitigation. SR 102, pp.3-4.
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regulations require consultation with these agencies and
accord "great weight” to their views. With good reason,
however, nothing in the regulations, the statutes, or the cases
interpreting either requires the Corps to follow the views of
such agencies. Such a requirement would give the agencies
veto power over Corps decisions. Sierra Club v. Callaway,
499 F.2d 982 (Sth Cir. 1974). In making decisions affecting
specific natural resources it is to be expected that the Corps
should be required to consult with experts in the field and
seriously consider their views. The final decision remains,
as it must, for the Corps.
2. The Effect of Fishing
In its analysis of the decline of the striped bass
population, the Corps considered the effect of fishing and
concluded that overfishing was a significant factor. Plaintiffs
contend that the Corps’ analysis was flawed and that the
effect of fishing was not appropriate for consideration in the
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SEA. However, as the Corps said in its SSOF:
The court directed the Corps to address the
effects of the City’s project on striped bass.
Several factors affect, or may affect, the
Roanoke/Albemarle striped bass: recruitment,
natural mortality, fishing mortality, flow,
water quality, etc. Thought of as an equation
with many variables, it is exceedingly difficult
to find the result of altering one variable
without knowing something about the other
variable.
SSOF, SR 158, p.7. The court concurs and feels confident
that had the Corps not considered fishing mortality as well as
the other variables, plaintiffs would now be citing that failure
in support of their position in this case.
Plaintiffs particularly object to the Corps’
consideration of a document of the Atlantic States Marine
Fisheries Commission (ASMFC) contending that it was only
a draft document by a subcommittee of the commission
whose findings have been cast into doubt by later data.
ASMFC has been studying the major striped bass populations
along the East Coast for many years and a subcommittee has
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been studying fishing mortality which is defined as "the
measure of that portion of a population which is lost due to
fishing, as opposed to natural mortality (predation, disease,
etc.)." SEA, SR 157, p.10.
USFWS and NMFS disagreed with the findings of the
subcommittee of ASMFC and communicated their opinions
to the Corps. Their disagreement was based, in large
measure, on the successful 1988 spawning season.
Colonel Thomas, in his analysis, recognized that the
document was a draft report of a subcommittee so neither
plaintiffs nor this court have been deceived. In addition, he
considered the opinions of USFWS and NMFS and
concluded in his SSOF that the earlier analysis in the SEA
was correct and that "it [is] unlikely that any improvement in
environmental conditions would substantially improve striped
bass recruitment until the overfishing problem has been
remedied.” SSOF, SR 158, p.7. The court is unable to say
that the Corps’ finding in this respect, or the analysis leading
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to it, was arbitrary or capricious.
3. Cumulative Impacts
Plaintiffs complain that the Corps did not consider the
cumulative impacts of potential future uses of the river, such
as municipal, industrial and agricultural withdrawals, on
striped bass. In its first consideration of this matter the
Corps considered other potential uses of the Roanoke River
as they might impact on river flow. The court, in its initial
review, found this part of the Corps’ decision not to be
arbitrary or capricious. Furthermore, the remand order was
specific as to the scope of the additional review required and
it did not include cumulative impacts of potential future uses.
Finally, such future uses remain now, as they did at the first
review, entirely speculative.
4. Congressional Findings
RRBA contends that the Corps ignored important
congressional findings when analyzing the effects of the
project on striped bass. The basis of this contention is a bill
passed by Congress reauthorizing appropriations to
implement the Atlantic Striped Bass Conservation Act. 16
U.S.C.A. § 1851 (West 1985) (the Act). The Act, P.L.
100-589, 102 Stat. 2984 (Nov. 3, 1988), appropriated funds
for a period of three years for the continuation of the
activities authorized by the Act. By appropriating these
funds, Congress reiterated concerns which have been known
for decades, such as the fact that the striped bass populations
have been declining and that many factors, including
overfishing and river flow in the spawning grounds, are
thought to be involved. The Act mandates a study in an
effort to find causes for the decline and solutions to the
problem. It is quite obvious that the concerns addressed in
the Act are the same ones addressed by the Corps in its
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assessment, and the court finds no deficiency in the decision
of the Corps on this ground.
If this legislation has any significance in the decision
of the court, it lies in what is not said, rather that in what is
said. As is obvious to all, the project underlying this action
is controversial and has involved the political leaders of
Virginia and North Carolina for at least a decade. This
legislation was passed in 1988, well after the court’s July
1987 decision remanding the matter to the Corps for
reconsideration primarily of the striped bass issue. Thus,
when the Act was passed, Congress knew that striped bass,
the subject of the Act, were also the central focus of this
lawsuit. If Congress had intended that a moratorium be
placed on withdrawals from the Roanoke River pending the
study it mandated or that the Corps or this court should
consider such action, it, no doubt, would have expressed its
intent in the Act.
5. Mitigation
As noted, the Corps ordered mitigation measures, as
a precaution, even though it concluded that the project would
have no significant impact on striped bass. North Carolina
argues that even this measure is insufficient because it is
based on the old flow regime and a flawed model. The
Corps demonstrated, however, that the mitigative measures
will result in no impact by the project under either flow
regime or either model.!!
Courts have permitted the effect of mitigation
measures to be considered in determining whether
preparation of an EIS is necessary. Jones v. Gordon, 792
F.2d 821, 829 (9th Cir. 1986). "[W]hen mitigation
measures compensate for otherwise adverse environmental
impacts, the threshold level of ’significant impacts’ is not
'! The "models" referred to are computer models, one constructed
by the Corps’ Wilmington office and the other by Virginia Beach. The
Corps relied primarily on its own model.
67a
reached so no EIS is required.” C,A,R.E, Now, Inc, v.
F.A.A., 844 F.2d 1569, 1575 (llth Cir. 1988), reh’g
denied, 854 F.2d 1326 (llth Cir. 1988) (citing Cabinet
M ns Wild Scotch 's Peak Grizzly B
Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982)). As the
court said in Cabinet Mountains Wilderness:
NEPA’s EIS requirement is governed by the
rule of reason ... and an EIS must be
prepared only when significant environmental
impacts will occur as a result of the proposed
action. If, however, the proposal is modified
prior to impiementation by adding specific
mitigation measures which completely
compensate for any possible adverse
environmental impacts stemming from the
original proposal, the statutory threshold of
significant environmental effects is not crossed
and an EIS is not required. To require an
EIS in such circumstances would trivialize
NEPA and would ‘diminish its utility in
providing useful environmental analysis for
major federal actions that truly affect the
environment.’
685 F.2d at 682 (citations omitted).
Dire consequences, particularly in the river flow, are
forecast by North Carolina in the event of a severe drought.
68a
Whether that forecast or the Corps’ forecast, that the project
will have no impact on the river flow, is correct remains to
be seen. This court is not an expert on that subject. Neither
is North Carolina. The Corps is. And it is to the Corps that
the Congress has entrusted the final decision. This court’s
sole function is to review the Corps’ decision under the
standard herein set out. Having done so, the court is
convinced that the decision, insofar as it deals with striped
bass, is not arbitrary and capricious. This is especially true
considering the mitigative measure which was ordered.
B. VIRGINIA BEACH’S NEED
Plaintiffs contend that the Corps has not complied
with the court’s mandate to assess Virginia Beach’s need.
Specifically, they contend that pcpulatio: projections which
have been used are too high and that other sources of water
have not been adequately factored into the equation. The
court disagrees. This court’s 1987 Opinion upheld as
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reasonable the Corps’ determination that ‘Virginia Beach had
a need for water and remanded only for a determination of
the extent of that need. Upon remand the Corps sought input
from all interested parties and all available sources. Its
analysis of the projections of the amount of water Virginia
Beach will need in 2030 and the amount which will be
available may be flawed in some respects but is not arbitrary
or Capricious. Indeed, this court is convinced that 60 mgd
in 2030 may be insufficient to meet the city’s need after
considering all other reasonably foreseeable sources of water.
As Colonel Thomas stated:
I am convinced that there will never be a
consensus among experts, much less among
those willing to offer an opinion, as to the
extent of Virginia Beach’s water needs. A
cynic would say, ad hominem, that North
Carolina and RRBA, as plaintiffs, are
underestimating the need and Virginia Beach,
as defendant, is overestimating it and, in fact
those parties have said just those things about
each other. It is not sufficient to merely
select a figure in the middle, though, because
potable water is vital to human health and
welfare and such decisions must not be made
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so lightly.
SSOF, SR 158, pp.12-13. Colonel Thomas then very
carefully analyzed the available information and contentions
and conciuded that "Virginia Beach needs this 60 mgd
project.” He reached this conclusion only after a searching
analysis which complies with the requirement of an
assessment of the public need for the project.
IX. CONCLUSION
As noted in this court’s earlier opinion, the center of
the controversy here is the interbasin transfer of water. The
controversy is not state against state,'’* but basin against
'2 Such clashes are common within the State of North Carolina
where fourteen interbasin transfers now divert about 40 mgd. One such
dispute currently exists over the proposal of two Wake County towns,
Cary and Apex, to withdraw water from Lake Jordan, in the Cape Fear
Basin, and discharge it into the Neuse River Basin. The News and
Observer, Raleigh, N.C., January 15, 1990, at 1B. Such transfers have
served as a “'lightning rod for disputes among water users in North
Carolina and elsewhere.’” Id. (quoting from the fall issue of Popular
Government magazine, a publication of the Institute of Government,
Chapel Hill, North Carolina).
Tila
basin, the James River Basin against the Roanoke River
Basin. This point is borne out by the fact that many of the
plaintiffs are residents of the State of Virginia. The State of
North Carolina is lead plaintiff but only because more of its
citizens are involved.
It is quite natural for citizens to be concerned with the
withdrawal of water from the basin in the area in which they
live for use in another place. Interbasin transfer not only
eliminates the availability of the water from the basin but it
also has the potential to increase the degree of pollution of
the water remaining in the basin. Nevertheless, whether to
permit interbasin transfer of water is essentially a political
decision.
Water is a necessity of life. It is a valuable resource
which must be protected and conserved and shared by all.
Congress has long recognized the importance of this natural
resource and has passed many acts, some of which are
relevant to this litigation, to conserve it and regulate its use.
72a
Primary responsibility for enforcement and implementation
of the legislation pertinent here lies with the Corps. It has
discharged that responsibility and concluded that the City of
Virginia Beach should be allowed to withdraw up to 60 mgd
from Lake Gaston. This court’s review disclosed that, in
reaching its decision, the Corps has taken a "hard look” at
the environmental consequences, including the potential
effect on striped bass. Kleppe, 427 U.S. at 410. The
Corps’ decision will be upheld. An appropriate order will
issue.
This 2 February 1990.
W. EARL BRITT
United States District Judge
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APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
No. 84-36-CIV-5
STATE OF NORTH CAROLINA,
et al.,
plaintiffs,
V. ORDER
COLONEL RONALD E. HUDSON,
et al.,
defendants.
In accordance with the memorandum opinion of even
date herewith, the decision of the United States Army Corps
of Engineers to issue a permit to the City of Virginia Beach,
Virginia, to construct a water intake structure and pipeline in
Lake Gaston to extend to Suffolk, Virginia, and to enter into
a water storage reallocation contract for Kerr Reservoir on
behalf of the United States with the City of Virginia Beach
are affirmed.
This 2 February 1990.
W. EARL BRITT, United States District Judge
74a
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
No. 84-36-CIV-5
STATE OF NORTH CAROLINA,
et al.,
Plaintiffs,
Vv. MEMORANDUM
PINION
COLONEL RONALD E. HUDSON,
et al.,
Defendants.
This action seeks judicial review of two decisions of
the United States Army Corps of Engineers: (1) to issue a
permit to the City of Virginia Beach, Virginia, nder section
10 of the Rivers and Harbors Appropriation Act of 1899, 33
U.S.C.A. § 1344 (West 1986), to construct a water intake
structure and pipeline in Lake Gaston to extend to Suffolk,
Virginia; and (2) to enter into a water storage reallocation
contract for Kerr Reservoir on behalf of the United States
75a
with the City of Virginia Beach pursuant to the Water Supply
Act of 1958, 43 U.S.C.A. § 390b (West 1986). Plaintiffs,
the State of North Carolina, the Roanoke River Basin
Association (RRBA), four counties located in Virginia and
eight counties located in North Carolina, challenge the
issuance of the permit, contending that it violates the
National Environmental Policy Act (NEPA) of 1969, 42
U.S.C.A. §§ 4321-4347 (1977), the Clean Water Act of
1977, the Rivers and Harbors Appropriation Act of 1899,
the Coastal Zone Management Act, 16 U.S.C.A. §§ 1451-
1464 (West 1985), the Water-Supply Act and the various
federal regulations implementing those statutes. Plaintiffs
allege that the contract was executed in violation of NEPA,
the Water Supply Act, the Clean Water Act and their
implementing regulations. Plaintiffs ask the court to declare
the pipeline construction permit and water supply contract
void and remand the case to the Corps, with directions that
before issuing any new permit or entering into any new water
76a
supply contract the Corps must (1) prepare an environmental
impact statement (EIS) pursuant to section 102(2)(C) of
NEPA and (2) conduct a meaningful public interest review
pursuant to 33 C.F.R. § 320.4 (1986).
A hearing was held on 7 November 1986 on the
parties’ motions for summary judgment, and the case is now
ripe for final disposition on the merits.
I. FACTS AND PRIOR PR DI
The City of Virginia Beach, Virginia (Virginia
Beach), now the largest in the state, is located on the
Atlantic Ocean and in close proximity to other large bodies
of water, such as Chesapeake Bay and the James River. Yet
it suffers from a lack of an adequate supply of potable water
to meet the needs of its citizens. Until recently when five
wells were constructed for contingency use in the event of an
T7a
emergency,' it depended entirely on the City of Norfolk for
its water. The need for water has been especially acute in
times of drought, and on at least three occasions in the last
decade droughts have brought hardship on the citizens and
the implementation of conservation measures, including
rationing. Seeking a permanent solution to its problem,
Virginia Beach engaged in studies of its own and participated
in joint studies with others. Every conceivable source,
including desalting, wastewater reuse, groundwater, lakes
and rivers, was explored before the City decided that its best
alternative for a reliable source was Lake Gaston in the
Roanoke River Basin.
The Roanoke River has its headwaters in the
mountains of Virginia, near the City of Roanoke. It flows
southeasterly, crossing the North Carolina border between
! The wells were constructed following the drought of 1980-81 and
are located within other municipal jurisdictions, Suffolk, Isle of Wight
County and Southampton County. They are intended fo. use only in the
event of an emergency, and their use reverts to the municipalities in
which they lie after contract periods of ten to fifteen years.
78a
linemen
Bracey, Virginia, and Gaston, North Carolina, and empties
into the Albemarle Sound near Plymouth. Over the years
several dams have been constructed on the river for fiood
control and hydroelectric purposes. This has resulted in
several lakes, including Smith Mountain, John H. Kerr,”
Gaston and Roanoke Rapids.
On 15 July 1983 Virginia Beach applied to the
Norfolk District of the Army Corps of Engineers for a
permit to construct a water intake structure, pier, boathouse
and ramp in the Pea Hill Creek tributary of Lake Gaston
located in Brunswick County, Virginia, and a sixty-inch
inside diameter concrete pipe to extend to the City of
Norfolk’s water transport and treatment facilities located in
Suffolk, Virginia, a distance of approximately 84.5 miles.?
The pipeline was proposed to withdraw and transport up to
2 Also known as Buggs Island.
> The City of Norfolk would continue to treat the water derived
from the new source.
79a
a total of sixty million gallons per day (mgd) of water by the
year 2030. Under the- proposal forty-eight mgd would
ultimately be treated for the use of Virginia Beach, ten mgd
for Chesapeake, one mgd for the Isle of Wight County, and
one mgd for Franklin. As part of its application Virginia -
Beach submitted an environmental study prepared by its
consultants intended to assess the probable environmental
impacts of the proposed project and evaluate dereatves to
the proposal.
Over the next several months approximately 6,000
people attended three public hearings in North Carolina and
Virginia where substantial oral and written comments were
presented expressing both support for and opposition to the
proposed project.* On 11 October 1983 the Norfolk District
Corps issued a draft environmental assessment (EA) and a
4 The first hearing was held in Lawrenceville, Virginia, on 25
August 1983 before the issuance of the draft EIS and draft FONSI. The
other two, at Roanoke Rapids, North Carolina, on 14 November 1983
and Virginia Beach, Virginia, on 17 November 1983, were held before
the issuance of the final EIS and final FONSI.
80a
preliminary finding of no significant impact (FONSI) for
public review and comment. On 7 December 1983 the
Corps issued its final EA and FONSI which concluded that
the project would have no significant environmental impacts
and therefore preparation of an EIS was not required by
NEPA. Consistent with Corps regulations a thirty-day public
comment period, which expired on 6 January 1984, was
announced. Comments were received by the Corps in
response to the final EA and FONSI, including comments
submitted by North Carolina and RRBA. On 9 January 1984
the Norfolk District Engineer signed and issued a permit to
Virginia Beach. At the same time he issued a Statement of
Findings (SOF) addressing comments on the EA and FONSI.
Meanwhile, the Wilmington District Corps was
considering a request by Virginia Beach to enter into a water
supply contract pursuant to the Water Supply Act of 1958 to
reallocate storage in Kerr Reservoir from power supply to
water supply. The contract was proposed to reallocate to
8la
Virginia Beach 10,200-acre feet of water storage space in
Kerr Lake which Virginia Beach could require the Corps to
release into Lake Gaston to offset the withdrawal from Lake
Gaston. On 13 January 1984 the Wilmington District
Engineer adopted the EA prepared by the Norfolk District
Engineer and issued a FONSI which concluded that no
significant environmental impacts would result from the
proposed reallocation and therefore an EIS was not required
by NEPA. On 12 January 1984 the City signed the contract
which was approved by the Assistant Secretary of the Army
for Civil Works on 30 January 1984.
On 12 January 1984 the State of North Carolina filed
this suit against Colonel Ronald E. Hudson, District Engineer
for the Norfolk District of the Corps of Engineers; Colonel
Wayne A. Hanson, District Engineer of the Wilmington
District of the Corps of Engineers; Lieutenant General Joseph
K. Bratton, the Chief of Engineers of the Corps of
Engineers; William R. Gianelli, Assistant Secretary of the
82a
United States Department of the Army; and, John O Morris,
Jr., Secretary of the United States Department of the Army.
All defendants are sued in their official capacities. The
complaint alleges that issuance of the pipeline construction
permit was arbitrary and capricious and in violation of
NEPA, the Clean Water Act, the Rivers and Harbors Act,
the Coastal Zone Management Act, the Water Supply Act,
and the federal regulations implementing those acts. On 20
June 1984 the court allowed RRBA, eight counties in North
Carolina and four counties in Virginia to intervene as
plaintiffs. The counties filed a single complaint which
mirrors that of the State of North Carolina.’ RRBA’s
complaint in intervention challenges the issuance of the
pipeline construction permit and also challenges execution of
the water storage reallocation contract between the United
States and Virginia Beach. On 3 December 19854 North
* Hereinafter, references to North Carolina refer to the joint
positions of North Carolina and the twelve counties.
83a
Carolina was allowed to amend its complaint to also
challenge execution of the water storage contract. On 4
December 1985 Virginia Beach was allowed to intervene as
a part defendant.
Meanwhile, on 9 January 1984, Virginia Beach
initiated an action in the Eastern District of Virginia (the
Virginia Beach action) against RRBA and the Governor of
North Carolina seeking a declaratory judgment that the
permit and contract were valid. The governor of North
Carolina moved to dismiss for lack of personal jurisdiction.
The district court held that the governor was amenable to
service of process pursuant to the Virginia long-arm statute,
Va. Code § 8.01-328.1 (Repl. Vol. 1984). An interlocutory
appeal was taken to the United States Court of Appeals for
the Fourth Circuit which ruled that the Virginia long-arm
Statute conferred no jurisdiction for assertion of plaintiffs’
claims over the Governor of North Carolina. City of
Vicsinie Reach vy. Bosncies Bier Botte Ageeciation 716
84a
F.2d 484 (4th Cir. 1985). The court ruled that Virginia
Beach should be given an opportunity to transfer that case to
the Eastern District of North Carolina. On 14 November
1985 Virginia Beach’s motion to transfer was allowed, and
the case became Civil Action No. 85-1625-CIV-5 in this
court. On 2 December 1985 Virginia Beach moved to
consolidate the two actions and to realign the parties
according to their interest. On 17 December 1985 the
motion was denied inasmuch as Virginia Beach had already
intervened in this action and the claims and parties in each
case were identical. The Virginia Beach action was
dismissed, but all discovery previously conducted was made
a part of this action.
On 12 December 1985 the Corps of Engineers filed
the administrative record with the court. On 17 December
1985 the court suspended all discovery and ruled that judicial
review of the Corps’ actions would be confined to the
administrative record consistent with the Administrative
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Procedure Act, 5 U.S.C.A. § 706(2)(A) (West 1977).
Disputes concerning the contents of the record were resolved
by the 28 March 1986 order of the court which allowed
limited supplementation of the record.
Virginia Beach has subsequently submitted a
"Supplement to Virginia Beach’s Response to Plaintiffs’
Motions for Summary Judgment” in which it asks the court
to consider Midkiff Affidavit, Exhibit G, an exhibit which is
not part of the administrative record, for the limited purpose
of impeaching arguments made by North Carolina and
RRBA. The _motion is denied. RRBA’s motion to
supplement the record with the same exhibit is also denied.
Il. APPLICABLE STATUTES AND REGULATIONS
Four statutes and their implementing regulations are
pertinent in this judicial review proceeding: The Rivers and
Harbors Appropriation Act of 1899, 33 U.S.C.A. § 403
(1986); the Clean Water Act, 33 U.S.C.A. §§ 1251-1376
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(1986); the Water Supply Act of 1958, 43 U.S.C.A. §§
390b-390f (1986); and the National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C.A. §§ 4321-4347 (1977).
Pursuant to section 10 of the Rivers and Harbors Act of
1899, 33 U.S.C.A. § 403 (1986), the Corps of Engineers is
responsible for evaluating proposed construction projects in
the navigable waters of the United States. Section 404 of the
Ciean Water Act, 33 U.S.C.A. § 1344 (1986), gives the
Corps jurisdiction to issue permits for the discharge of
dredged or fill materials into the navigable waters of the
United States. The Water Supply Act authorizes the Corps
to reallocate water storage in federal reservoirs such as Kerr
Reservoir. 43 U.S.C.A. § 390b (1986). In exercising the
authority granted by these three statues, the Corps must also
comply with the prerequisites of NEPA.
A. NEPA
Congress enacted NEPA to oblige federal agencies to
consider the environmental consequences of proposed actions
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in the decision-making process, thereby insuring "fully
informed and well-considered"” decisions. Stryker’s Bay
Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 228
(1980) (per curiam), quoting Vermont Yankee Nuclear
435 U.S. $519 (1978). Pursuant to section 102(2)(C) of the
Act, 42 U.S.C.A. § 4332(2)(C), a federal agency has the
duty to prepare a detailed environmenta. statement, known as
an environmental impact staiement (EIS), on every major
tederal action significantly affecting the quality of the human
environment. In order to determine which actions trigger
this provision, the Corps has promulgated regulations to
implement NEPA, 33 C.F.R. pt. 230 (1986). The Corps is
simultaneously governed by the Council on Environmental
Quality (CEQ) regulations construing and implementing
NEPA, 40 C.F.R. pts. 1500-1508 (1986).
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These implementing regulations outline Corps
procedure for evaluating a proposal. Before issuing a permit
the Corps must prepare an environmental assessment (EA) to
determine whether the proposed action would significantly
affect the quality of the human environment, thereby
requiring preparation of a comprehensive EIS. 33 C.F.R.
pt. 230, app. B(8)(a). Typically the EA is a brief
evaluation, normally not exceeding fifteen pages, of the
likely environmental effects of a proposal, the need for and
the alternatives to the proposed action. 33.¢c.F.R. § 230.9(c)
and 33 C.F.R. pt. 230, app. B(8)(a). When the district
engineer concludes that a project will not significantly affect
the quality of the human environment, he must prepare a
FONSI presenting the reasons for this conclusion. 33
C.F.R. § 230.10 and 33 C.F.R. pt. 230, app. B(8)(c).
Section 102(2)(E) of NEPA, 42. U.S.C.A.
§ 4332(2)(E), requires the federal agency to "study, develop
and describe appropriate alternatives” to recommended
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courses of action in any proposal involving unresolved
conflicts concerning alternative uses of available resources.
This provision is independent of the standard triggering
preparation of an EIS and is not limited to proposed major
actions significantly affecting the quality of the human
environment. River Road Alliance, Inc. v. Corps of
Engineers of United States Army, 764 F.2d 445 (7th Cir.
1985), cert. denied, U.S. ___, 106 S.Ct. 1283 (1986);
City of New York v ni ment_of
Transportation, 715 F.2d 732 (2d Cir. 1983), cert. denied,
465 U.S. 1055 (1984). However, the smaller the impact of
the proposed action, the less extensive the search for
alternatives is to be expected of the agency. River Road
Alliance, Inc., 764 F.2d at 452.
B. PUBLIC INTEREST REVIEW
AND OTHER CORPS REGULATIONS
In addition to the regulations implementing NEPA,
the Corps has adopted regulations which serve as guidelines
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for the evaluation of all regulatory permit applications. 33
C.F.R. pt. 320 (1986). Chief among these regulations is 33
C.F.R. § 320.4(a) which requires the Corps to undertake a
general "public interest review" to decide whether a permit
should issue. In this review the Corps must evaluate a
proposal’s overall impact on the public interest, balancing the
"benefits which reasonably may be expected to accrue...
against its reasonably foreseeable detriments." 33 C.F.R.
§ 320.4(a).
In weighing the public interest, the Corps is to
evaluate the following general criteria: (1) the relative extent
of a public and private need for the proposed project; (2)
where there are unresolved conflicts as to resource use, the
practicability of using reasonable alternative locations and
methods to accomplish the objective of the proposed project;
and, (3) the extent and permanence of the beneficial and/or
detrimental effects which the proposed project may have on
the public and private uses to which the area is suited. 33
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C.F.R. § 320.4(a)(2). Furthermore, all factors which may
be relevant to the proposal must be considered, including but
not limited to "conservation, economics, aesthetics, general
environmental concerns, wetlands, cultural values, fish and
wildlife values, flood hazards, floodplain values, land use,
navigation, shore erosion and accretion, recreation, water
supply and conservation, water quality, energy needs, safety,
food and fiber production, mineral needs, considerations of
property ownership, and, in general, the needs and welfare
of the people." 33 C.F.R. § 320.4(a)(1).
The decision whether to issue the permit depends on
the outcome of this balancing of factors. A permit is to be
eranted unless the district engineer determines that it will be
contrary to the public interest.° 33 C.F.R. § 320.4(a)(1).
®° This is the current language of the public interest regulation as
amended on October 5, 1984. 49 Fed. Reg. 39478. At the time of the
Corps’ decision the regulation provided that a permit would issue if the
Corps found the project to be in the public interest. 47 Fed. Reg. 31794
at 31804 (July 22, 1982). However, the original and revised regulations
“describe the same public interest balancing process." 49 Fed. Reg.
39478.
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When the decision on the permit application is made the
district engineer must include the results of his public interest
review in the Statement of Findings, a document which must
be prepared in all permit decisions not requiring preparation
of an EIS. 33 C.F.R. § 325.2(a)(6) (1986).
Corps regulations require that the district engineer
consult with the directors of the United States Fish and
Wildlife Service, the National Marine Fishery Service and
the agency responsible for wildlife for the state in which the
work is to be performed and accord "great weight" to their
views on fish and wildlife conservation. 33 C.F.R.
§ 320.4(c); Hough v. Marsh, 577 F. Supp. 74, 81 (D.Mass.
1982). Also the district engineer must consider all comments
received in response to public notice regarding the permit
application. 33 C.F.R. § 325.2(a)(3). Due consideration
must also be given to the official views of the state, regional
or local agencies having an interest over the particular
activity as "a reflection of local factors of the publi
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