Petition for A Writ of Certiorari — Texas Water Conservation Ass'n v. Department of the Interior

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91-19%%

No.

Bupreme Court, U.S,

FILED

YUN 2 1999

IN THE

UFFKE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM,

TEXAS WATER CONSERVATIOD

Petitioner

and

SABINE RIVER AUTHO

U.S. DEPARTMENT OF INTERIOR,

and

ASSOCIATION,

RITY

THE SIERRA CLUB AND THE NATIONAL AUDUBON

SOCIETY, Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL J. BOOTH *

FRANK R. BOOTH

CAROLYN AHRENS

DAVIDSON, TROILO & BOOTH, P.¢

1900 First City Centre

816 Congress Avenue

Austin, Texas 78701

(512) 478-9506

Counsel for Petitioner

Texas Water Conservation ASS¢

Appendix A - Prior Decisions

Appendix B- Statutes and Regulations

Appendix C - Other Authorities

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

TEXAS WATER CONSERVATION ASSOCIATION,

Petitioner

and

SABINE RIVER AUTHORITY °°

Ws

U.S. DEPARTMENT OF INTERIOR, ET AL.

and

THE SIERRA CLUB AND THE NATIONAL AUDUBON

SOCIETY, Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL J. BOOTH *

FRANK R. BOOTH

CAROLYN AHRENS

DAVIDSON, TROILO & BOOTH, P.C.

1900 First City Centre

816 Congress Avenue

Austin, Texas 78701

(512) 478-9506

Counsel for Petitioner

Texas Water Conservation Association

Appendix A - DECISIONS FROM THE COURTS

BELOW AND CLUB EASEMENT FINDING OF

NO SIGNIFICANT IMPACT

TABLE OF CONTENTS

APPENDIX A

DECISIONS FROM COURTS BELOW AND

CLUB EASEMENT FINDING OF NO

SIGNIFICANT IMPACT

Sabine River Authority and Texas

Water Conservation Association

Vv. U.S. Department of

Interior, et al, 951 F.2d 669

(Sta Cir. 1992); Decision

EEA OAS ke hve dco ics...

Sabine River Authority, Texas

Water Conservation Association

Vv. United States Department of

Interior, et al, 745 F.Supp.

388 (E.D.Tex. 1990) ............

Club Easement Finding of No

Significant Impact (FONSI)......

Circuit Court, New Orleans,

t

>

|

r

ice of Rehearing Denied......

Page

.

951 F.2d 669 (5th Cir. 1992)

SAB INE RIVER ecient.”

Plaintiff-Appellant

and

Texas Water Conservation Association,

Plaintiff-Intervenor-Appellant,

Vv.

U.S. DEPARTMENT OF INTER

De

and the National Audubon

t ntervenors-Appellees.

Action was brought challenging the Fish

and Wildlife Service's compliance with the

National Environmental Policy Act (NEPA) i

+e

-onnection with proposed acquisition of

-onservation easement on wetlands habitat.

nm cross motions for summary judgment, the

Fastern District of Texas, Paul N Brown,

, 745 F.Supp. 388, dismissed plaintiffs'

A-1l

APPENDIX A

Sth Circuit Court

January 28, 19392

claims, and plaintiffs appealed. The Court

of Appeals, Goldberg, Circuit Judge, held

that: (1) river authority and conservation

association that wanted wetlands area for

construction of reservoir suffered suffi-

cient “injury in fact" from grant of nonde-

velopment easement to have standing to

challenge acquisition of easement based on

Service's failure to prepare environmental

impact statement (EIS), but (2) actions of

the Service in acquiring nondevelopment

easement which prohibited any change in

status quo did not amount to "major federal

action significantly affecting quality of

human environment" so as to mandate prepa-

ration of EIS.

AFFIRMED.

William H. Burchett, Christine C. Ryan,

Jorden Schulte & Burchette, Washington,

D.C., Earl Roberts, Jr., Roberts, Hill &

A-2

APPENDIX A

Sth Circuit Court

January 28, 1992

Calk, Longview, Tex., for Sabine River

Authority.

Michael J. Booth, Frank R. Booth, Booth &

Newsom, Austin, Tex., Ruth H. Yeager, First

Asst. U.S. Atty., Tyler, Tex., Lisa Hemmer,

Atty., Robert L. Klarquist, Dept. of

Justice, Appellate Section, Environmental

Natural Resources, Washington, D.C., for

Texas Water Conservation Ass'n.

Jos. Irion Worsham, Worsham, Forsythe,

Samples & Wooldridge, Dallas, Tex., for

Little Sandy Hunting & Fishing Club.

Robert G. Dreher, Sierra Club Legal Def.

Fund, Washington, D.C., for Sierra Club and

Nat. Audubon Society.

Appeals from the United States District

Court for the Eastern District of Texas.

Before GOLDBERG and GARWOOD, Circuit

.

Judges, and BUCHMEYER, District Judge:

District Judge for the Northern District of Texas,

Sitting by designation

A-3

APPENDIX A

Sth Circuit Court

January 28, 1992

GOLDBERG, Circuit Judge:

This case is for the birds-thousands of

them. And we mean that in no facetious

sense.

At issue is a non-development easement on

3800 acres of land in East Texas, contain-

ing high-quality wetlands and wildlife

habitat essential to migratory waterfowl.

The Little Sandy Hunting and Fishing Club

donated the easement to the U.S. Fish and

Wildlife Service in an effort to guarantee

that the wetlands would be preserved in

their pristine state without the corrupting

effect of commercial, agricultural, and in-

dustrial development. By accepting the

easement, the Fish and Wildlife Service has

thus insured that migratory birds and other

wildlife can flourish there.

The Sabine River Authority and the Texas

Water Conservation Association, though not

unsympathetic to the plight (and flight) of

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APPENDIX A

Sth Circuit Court

January 28, 1992

our fine feathered friends, filed a lawsuit

alleging that the Fish and Wildlife Service

violated the National Environmental Policy

Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et

seq., by failing to prepare an

Environmental Impact Statement (an "EIS")

in connection with the acquisition of the

easement. When the district court dis-

missed their claims by way of summary judg-

ment, Sabine River Authority v. United

States Dept. of Interior, 745 F.Supp. 388

(E.D.Tex.1990), they appealed. We affirm.

The district court correctly dismissed

the claims brought by the Sabine River

Authority and the Texas Water Conservation

Association, and we are hard-pressed to im-

prove upon its scholarly work. Its survey

of the relevant case law was extensive, its

analysis persuasive. Rather than dilute

the strength of the district court's rea-~

soning and pollute the legal environment

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APPENDIX A

Sth Circuit Court

January 28, 1992

TT

with an expansive discussion of our own, we

write only to express the depth of our com-

mitment to the district court's fluid opin-

ion. We must remediate in one area, how-

ever, filtering out the minute particles

(*672) of contaminant in the district

court's “standing” water.

PHASE I

Wetlands, with its swamps, marshes, bogs,

mud flats and other water-dependent commu-

nity types, are an ecological treasure.

They play a vital role for wildlife by pro-

viding nesting and habitat for many species

of fish, birds, plants and other wildlife.

For the bird community, wetlands foster

high species diversity, density, and pro-

ductivity by providing both food and habi-

tat, in the form of nesting sites, breeding

and rearing areas, feeding grounds, and

cover from predators. Office of Technology

Assessment, Wetlands: Their Use and

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APPENDIX A

Sth Circuit Court

January 28, 1992

Regulation, at 5-6, 30, 52 (1984). Many

endangered species rely on our wetlands for

their survival and reproductive success.

Without the wetlands, we are all but as~

sured of their extinction.

Beyond the direct import of wetlands to

wildlife, they also serve other equally

significant environmental functions. One

of the more apparent is their favorable ef-

fect on our water quality. By filtering

contaminants out of water before they can

reach the open water, wetlands serve as na~

ture's own water purifier. By absorbing

large amounts of water, wetlands protect us

from potential flooding.

As with many of our most precious natural

resources, our wetlands are threatened Dy

commercial, agricultural, and industrial

development. In the last 200 years, thirty

rr?

to fifty percent of our nation's wetlands

have disappeared. Because wetlands are

ms

APPENDIX A

Sth Circuit Court

January 28, 1992

——— Ett _Ct~SY

critical to flood control, water supply,

water quality, and, of course, wildlife,

their rapid disappearance is setting the

stage for what may eventually become a sig-

nificant—environmental catastrophe. The

State of Texas alone has lost 8 million

acres, nearly half of its original wet-

lands. With only some 7.6 million acres

remaining, wetlands presently constitute a

mere 4.4 percent of Texas' acreage. As the

wetlands continue to shrink, the threat to

our environment escalates.

Recognizing that our nation's wetlands

are vital to the environmental equilibrium,

the Fish and Wildlife Service embarked on a

laudatory effort to preserve the existing

wetlands. The Fish and Wildlife Service is

charged with the responsibility of protect-

ing and maintaining the population of mi-

gratory waterfowl, other wildlife re-

sources, and endangered species. Toward

A-8

APPENDIX A

Sth Circuit Court

January 28, 1992

that end, it established the National

Wildlife Refuge System, a project that has

earned widespread approval from environmen-

tal groups. Through the Refuge System, the

Fish and Wildlife Service has acquired mil-

lions of acres of environmentally rich

lands, lands which are to be preserved in

their natural state: no development, no

mining, just mother nature's original

recipe without any artificial ingredients.

These lands provide a winter home to the

thousands of migratory birds utilizing th

@

"Central Flyway” and support large popula-

tions of Native North American wood ducks.

.S. Fish and Wildlife Service, Wetlands of

the United States: Current Status and

Recent Trends at 15 (1984).

Some of the land is acquired in fee sim-

ple; but since the Fish and Wildlife

Service merely seeks to prohibit environ-

* 4 ; : .

~ nr i tr a | ali calh te it cadena a ee ae ee an -~

mentalils qagestructlve a mn tac

ee

much of it is obtained in the form of

leases and easements which preclude devel-

opment of the land. This method proves far

more economical in effectuating the goal of

preventing adulteration to the lands, be-

cause the government need net buy the prop-

erty and take title outright; it can ac-

cept a non-development easement-a promise

by the owner to refrain from developing the

property in a manner inconsistent with wet-

land preservation-and thereby achieve the

goal of protecting the environmental status

quo at a fraction of the cost.

The Fish and Wildlife Service acquired

the Texas wetlands at’ issue in this case

precisely in this manner. Little Sandy

Hunting and Fishing Club donated a non-de-

velopment easement on approximately 3800

acres of its land to the Fish and Wildlife

Service so that the character of the wet-

lands would remain unchanged, undeveloped,

A-10 ‘

APPENDIX A

5th Circuit Court

January 28, 1992

in perpetuity. These lands had been tar-

geted by the Fish and Wildlife Service for

several years because of its (*673) partic-

ula_.y rich natural attributes. Some stud-

jes rated the vegetation on Little Sandy's

land as "one of the most pristine bottom-

land areas i[n] the state [of Texas]." The

lands consist of “old-growth timber," in-

cluding willow, oak, hickory, gum, elm,

ash, hackberry, palmetto, switchcane, and

possum haw understory, and its bottomlands

play host to such dwellers as mallards,

gadwalls, ringnecks, and wood ducks.

The Sabine River Authority and the Texas

Water Conservation Association, cognizant

that the federal government's acquisition

of this land foreclosed the State of Texas

from taking the property by means of emi-

nent domain, were less than pleased to

nn

learn of the donation. They had given se~

rious consideration to using that land to

A-11

APPENDIX A

Sth Circuit Court

January 28, 1992

—————— itsts—‘_CsS

construct the Waters Bluff Reservoir, a

$158 million, forty- five thousand acre

project along the Sabine River in Smith,

Upshur, and Wood Counties. Their plans for

the construction of the reservoir, aimed at

satisfying the anticipated need for addi-

tional water over the next forty years,

were still in the preliminary stages: they

had obtained none of the necessary federal

and state permits, had secured no funding,

and had not yet entered into any firm con-

tracts for the 300 thousand plus acre feet

of water that the reservoir would generate

each year. Nevertheless, they were dissat-

isfied with the turn of events and filed

suit in the Eastern District of Texas al-

leging that the Fish and Wildlife Service

had failed to comply with the procedural

requirements of NEPA by not preparing an

Environmental Impact Statement (an "EIS")

in connection with its acquisition of the

A-12

APPENDIX A

Sth Circuiz Court

January 23, 1992

Little Sandy non-development easement.

They alleged that the easement was inter-

fering with their long-term plan to take

the property by eminent domain, construct

the Waters Bluff Reservoir, and thus insure

that the state's water supply would not be

placed in jeopardy in the calendar year

2030. Invoking NEPA, they asserted that

the Fish and Wildlife Service's acquisition

of the easement constituted a "major fed-

eral action significantly affecting the

quality of the human environment," 42

3.$.C. § 4332(2) (C), thereby necessitating

the preparation of an EIS.

In a comprehensive opinion, 745 F.Supp.

388 (E.D.Tex.1990), the district court dis-

missed their claims by way of summary judg-

nent. The court reasoned that the Fish and

Wildlife Service had prepared an adequate

Fnvironmental Assessment (the "eFA%) and had

ial |

("FONSI") as a precursor to acquiring the

easement. Concluding that there was no

corresponding change in the physical envi-

ronment flowing from the acquisition of the

non-development easement, the district

court held that the Fish and Wildlife

Service's decision to forego an EIS was not

arbitrary and capricious. Id. @t 392-937.

It dismissed the lawsuit, and this appeal

followed.

PHASE II

A preliminary issue in this case, indeed

in every case, is whether the party bring-

ing the lawsuit has standing. After re-

jecting on the merits plaintiffs' challenge

to the Fish and Wildlife Service's decision

to forego an EIS, the court below remarked

that plaintiffs had no standing to bring

this lawsuit in the first place. It rea-

soned that:

A-14

APPENDIX A

Sth Circuit Court

January 28, 1992

The Court's finding that the plain-

tiffs' claims are not within NEPA's

scope and that they are contrary to

NEPA's purpose compels the conclusion

that the plaintiffs lack standing to

assert a claim under NEPA. The plain-

tiffs' interest in constructing a

reservoir is unquestionably an inter-

est that is subject to the provisions

of NEPA, but it is not an interest

that NEPA was designed to protect.

745 F.Supp. at 397. In essence, the dis-

trict court concluded that because the Fish

and Wildlife Service was not obligated un-

der NEPA to prepare an EIS under the cir-

cumstances present in this case (a conclu-.

sion with which we agree), the injuries al-

leged by the plaintiffs as a consequence of

the absence of an EIS were not within the

zone of interests protected by NEPA. With

that conclusion we disagree.

[1-3] The standing inquiry has constitu-

tional, statutory, and judicially formu-

lated (*674) components. North Shore Gas

v. EPA, 930 F.2d 1239, 1242-43 (7th

Cit L9Fh) . It has as its origins the con-

APPENDIX A

Sth Circuit Court

January 28, 1992

stitutional requirement that federal courts

only decide cases or controversies.

Constitution, Article III, § 2. When we

Say that a particular plaintiff has no

standing to bring the lawsuit in the con-

stitutional sense, we mean that the plain-

tiff has not suffered an injury which is

redressible by the court. Allen v. Wright,

468 U.S. 737, 104 §.Ct. 3315, 82 L.Ed.2d

556 (1984). This inquiry places not too

heavy a burden on a prospective plaintiff

because even "a probabilistic benefit from

winning a suit is enough ‘injury in fact'

to confer standing" under the Constitution.

North Shore Gas, 930 F.2d at 1242.

(4] From an Article III perspective, the

plaintiffs have standing. "Injury in fact

is not confined to economic injury, but may

include injuries to aesthetics and well-be-

ing." Save Our Wetlands, Inc. v. Sands,

711 F.2d 634, 640 (Sth Cir.1983).

A-16

APPENDIX A

Sth Circuit Court

January 28, 1992

The procedural injury implicit in

agency failure to prepare an EIS-the

creation of a risk that serious envi-

ronmental impacts will be overlooked-

is itself a sufficient ‘injury in

fact' to support standing, provided

this injury is alleged by a plaintiff

having a sufficient geographical nexus

to the site of the: challenged project

[such that they can] expect [| ] to

suffer whatever environmental conse-

quences the project may have.

City of Davis v. Coleman, 521 F.2d 661, 671

(9th Cir.1975); accord Friends of the

Earth v. U.S. Navy, 841 F.2d 927, 932, mod-

ified, 850 F.2d 599 (9th Cir.1988); see

also South East Lake View Neighbors v.

Dept. of Housing and Urban Development, 685

F.2d 1027, 1039 (7th Cir.1982) (construing

City of Davis to hold that the "injury oc-

curred with the creation of a risk that po-

tential environmental damage would go

undiscovered") ; cf. North Shore Gas, 930

F.2d at 1242 ("a probabilistic benefit from

winning a suit is enough ‘injury in fact’

to confer standing in the undemanding

A-17

APPENDIX A

Sth Circuit Court

January 28, 1992

Article III sense"); but see Greenpeace

USA Vv. Stone, 748 F.Supp. 749, tao

(D.Hawaii 1990) (expressing concern over

whether a plaintiff with a geographical

nexus to project satisfies the injury in

fact requirement by virtue of a procedural

injury alone), appeal dismissed as moot,

924 F.2d 175 (9th Cir.1991).

(5] The Sabine River Authority has been

charged by the State of Texas with the

weighty responsibility of managing, con-

serving, and monitoring the waters of the

Sabine River in order to meet the "domestic

uses of the people in the district, includ-

ing all necessary water supplies for cities

and towns." Water Aux. Laws art. 8280-133,

§ 14(d). It has alleged an economic injury

(shortage of water supply) attendant to the

Fish and Wildlife Service's acquisition of

the Little Sandy Easement. The Texas Water

Conservation Association is an organization

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APPENDIX A

Sth Circuit Court

January 28, 1992

incorporated under the laws of the State of

Texas which has as its stated mission the

conservation of water resources of the

state. Its membership includes "river au-

thorities, individuals, firms, corpora-

tions, cities, water districts, public and

private agencies and groups dedicated to

the task of conserving, developing, pro-

tecting and utilizing the water resources

of Texas for beneficial purposes." This

organizational plaintiff has a "sufficient

geographical nexus" to the Little Sandy

property, and the interests at stake affect

the members of the organization such that

the organization has standing to bring the

claims on their behalf. See Save Our

Wetland, EaC.s% 744 F.2d at 640

(organizational plaintiff had standing be-

cause member of organization who fished at

site in question was "injured" by adverse

aesthetic impact). The injuries that these

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APPENDIX A

Sth Circuit Court

January 28, 1992

parties allege relate to the adverse envi-

ronmental effects that they will experience

as a result of the Fish and Wildlife

Service's acquisition of the Little Sandy

easement. As the district court observed:

One effect of the [Fish and Wildlife

Service])'s action is that as long as

the easement remains in the National

Wildlife Refuge System, [the Sabine

River Authority] cannot build the

Waters Bluff Reservoir. Although fed-

eral law provides certain procedures

by which land may be released from the

Refuge System, there is certainly a

risk that [the Sabine River Authority]

may not convince (*675) either the

Congress or the Secretary of the

Interior to relinquish the easement.

745 F.Supp. at 396 & n. 6. According to

the plaintiffs, the Sabine River

Authority's inability to condemn this prop-

erty and build the Waters Bluff Reservoir

on that site creates a substantial risk

that the region will experience water

shortages some forty years in the future.

Although there is necessarily some specula-

tion attendant to predictions of this sort,

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APPENDIX A .

Sth Circuit Court

January 28, 1992

the injuries alleged are not "too specula-

tive to support their standing." South

East Lake View Neighbors, 685 F.2d at 1035.

While still in the early planning stages,

plaintiffs were intent on going forward

with the construction of the Waters Bluff

Reservoir to pretermit any potential water

shortage problems; the Little Sandy

Easement has made that effort a virtual

nullity. We therefore find "a fairly

traceable causal connection between the de-

fendant's allegedly illegal conduct and the

plaintiff's purported injuries," id. at

1036, sufficient to confer standing in the

constitutional sense.

[6] In the context of NEPA, however, the

Supreme Court has recently explained that

beyond the constitutional standing require-

ments, “the plaintiff must establish that

ct?

he injury he complains of (his aggrieve-

Mm nr

ment

, Or the adverse effect upon him) falls

A-21

APPENDIX A

Sth Circuit Court

January 28, 1992

within the ‘zone of interests‘ sought to be

protected by the statutory provision whose

violation forms the legal basis for his

complaint." Lujan v. National Wildlife

Federaticn, - U.S. -, 110 S.Ct. 3177, 3186,

111 L.Ed.2d 695 (1990) (emphasis in origi-

nal); see also Greenpeace USA, 748 F.Supp.

at 756 (Lujan "appears to heighten the re-

quirements for establishing actual injury

for purposes of standing under NEPA.").

"(T]he only people who may sue to enforce a

law are people who belong to the class that

the law was designed to protect." North

Shore Gas, 930 F.2d at 1243. In other

words, “only intended beneficiaries of a

statute can seek relief under it." Id. To

illustrate, the Supreme Court posited that

court reporters are plainly aggrieved when

an agency fails to comply with a statutory

provision that requires that all proceed-

ings be transcribed; nevertheless, because

A-22

APPENDIX A

Sth Circuit Court

January 28, 1992

La whee oteder A oke 6

the parties to the proceedings, and not the

court reporters, are the intended benefi-

ciaries of the statutory provision, the

parties and not the court reporters would

have standing to challenge the agency's

non-compliance with the statute. Lujan,

120 $.Ct. at 3196.

(7] We are persuaded that the injuries

alleged by the plaintiffs in their com-

plaints-harmful effects on the quality and

quantity of East Texas' water supply-"are

among the sorts of interests" that NEPA was

specifically designed to protect. Lujan,

a0 3,.Ce. @¢ 3187. These alleged injuries

fall squarely within the class of injuries

that NEPA safeguards: the circuit courts,

to be sure, are flooded with cases which

elucidate that water quality and water sup-

ply are prototypically matters of great en-

vironmental concern. E.gJ., Olmsted

Citizens for a Better Community, 793 F.2d

A-23

APPENDIX A

Sth Circuit Court

January 28, 1992

201, 205 (8th Cir.1986) (a federal action

which "poses a threat to the physical re-

sources of the area because of anticipated

water supply problems" must be pre-

ceded by an EIS); Environmental Defense

Fund, Inc. v. Andrus, 596 F.2d 848, 851-53

(9th Cir.1979) (holding that an EIS was re-

quired "to evaluate the environmental con-

sequences of [the] decision [to divert wa-

ter to industrial use]"); City of Davis v.

Coleman, 521 F.2d 661, 671-72 (9th

Cir.1975) (allegations in complaint "that

the planned industrial development

may adversely affect the quality and quan-

tity of the city water supply” established

injury in fact within the zone of interests

of NEPA). Indeed, NEPA itself articulates

that the protection of the water quality

and supply is an important concern of the

statutory scheme. See 42 U.S.C. §§ 4321,

4331 (c); see also Metropolitan Edison Co.

A-24

APPENDIX A

Sth Circuit Court

January 28, 1992

v. People Against Nuclear Energy, 460 U.S.

766, 103 S.Ct. 1556, 1560-61, 75 L.Ed.2d

534 (1983) (quoting from statements of two

principal sponsors of NEPA which identify

water supply and quality as a concern of

NEPA). Moreover, these plaintiffs are the

proper plaintiffs to raise these claims.

Although "the intended beneficiaries of

NEPA are individual citizens . . . the

Statute expressly contemplates that state

and (*676) local asuieeiinnies are to play an

important role in the effectuation of na-

tional environmental policy." City of

Davis, 521 F.2d at 672 (citing 42 U.S.C. §§

4331(a), 4332(2)(C), 4332(2)(F), 4341(4),

4345(1)).

This is not a case brought by a disap-

pointed contractor who alleges that he has

been injured because he would have been

hired to build the Waters Bluff Reservoir

had the Fish and Wildlife Service not ac-

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APPENDIX A

Sth Circuit Court

January 28, 1992

cepted the negative easement. Like the

court reporter example posited in Lujan,

the contractor, though arguably aggrieved

as a result of the Fish and Wildlife

Service's acceptance of the negative ease-

ment, would not have standing under the

"zone of interests" test because NEPA was

not designed to protect contractors’

rights: it was designed to protect the en-

vironment. Perhaps the best way to illus-

trate the point is to put the proverbial

cart before the horse. If, contrary to our

holding on the merits, NEPA did require the

Fish and Wildlife Service to prepare an EIS

in connection with the Little Sandy ease-

ment, we would still have to consider

whether these plaintiffs have standing to

challenge the Fish and Wildlife Service's

non-compliance. We think it is quite plain

that the Sabine River Authority and the

Texas Water Conservation Association would

A-26

APPENDIX A

Sth Circuit Court

January 28, 1992

fealashit oni = o..°t

(and do) have standing to bring a lawsuit

because the alleged harm flowing to these

plaintiffs from the defendant's non-compli-

ance with NEPA is of a kind with which NEPA

is concerned.

PHASE III

[8] This case arises under the network

of NEPA, a statute drafted to ensure that

federal agencies “carefully consider de-

tailed information concerning significant

environmental impacts," and at the same

time "guarantee[ ] that the relevant infor-

mation will be made available to the larger

audience that may also play a role in both

the decisionmaking process and the imple-

mentation of that decision." Robertson v.

Methow Valley Citizens Council, 490 U.S.

332, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351

(1989); accord North Buckhead Civic Ass'n

v. Skinner, 903 F.2d 1533, 1540 (11th

Cir.1990). It is a procedural statute that

A-27

APPENDIX A

Sth Circuit Court

January 28, 1992

| :

demands that the decision to go forward

with a federal project which significantly

affects the environment be an environmen-

tally conscious one. The statute does not

command the agency to favor an environmen-

tally preferable course of action, only

that it make its decision to proceed with

the action after taking a "hard look at en-

vironmental consequences." Robertson, 109

S.Ct. at 1846 (quoting Kleppe v. Sierra

Club, 427 U.S. 390, 410 n. 21, 96 S.Ct.

2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)).

Indeed, NEPA does not prohibit the under-

taking of federal projects patently de-

structive of the environment; it simply

mandates that the agency gather, study, and

disseminate information concerning the pro-

jects’ environmental consequences. "Other

statutes may impose substantive environmen-

tal obligations on federal agencies, but

A-28

APPENDIX A

Sth Circuit Court

January 28, 1992

NEPA merely prohibits uninformed-rather

than unwise-agency action." Id.

(9] How much information the agency must

process is the subject of this litigation.

NEPA instructs that federal agencies:

include in every recommendation or re-

port on proposals for legislation and

other major Federal actions signifi-

cantly affecting the quality of the

human environment, a detailed state-

ment by the responsible cfficial on-

(i) the environmental impact of the

proposed action, [and]

(ii) any adverse environmental effects

which cannot be avoided should the

proposal be implemented

42 U.S.C. § 4332(2)(C). Thus, NEPA directs

federal agencies to prepare what is com-

monly known in the industry as an

Environmental Impact Statement (an "EIS")

when it engages in “major Federal action[ ]

Significantly affecting the environment."

"An environmental impact statement is

intended to detail the environmental

and economic effects of any proposed

federal action so that those not di-

rectly involved can understand and

A-29

APPENDIX A

Sth Circuit Court

January 28, 1992

|

give meaningful consideration to and

make appropriate comment on the fac-

tors involved. It also *677 ensures

that the decisionmaker give serious

weight to environmental factors in

making discretionary choices."

State of Louisiana v. Lee, 758 F.2d 1081,

1084 (Sth Cir.1985). An EIS is “not re-

quired for non major action or a major ac-

tion which does not have significant impact

on the environment." Sierra Club v.

Hassell, 636 F.2d 1095, 1097 (Sth Cir. Unit

B 1981) (emphasis added).

(10) To assist federal agencies in re-

solving whether they must prepare an EIS,

the federal Council on Environmental

Quality ("CEQ") has issued regulations to

which these agencies can turn for guidance.

Sierra Club v. Marsh, 769 F.2d 868, 870

(lst Cir.1985). These regulations are en-

titled to substantial deference, Robertson,

109 S.Ct. at 1848, and "are binding on fed-

eral agencies." Fritiofson v. Alexander,

772 F.2d 1225, 1236 (Sth Cir.1985). .

A-30 .

APPENDIX A

Sth Circuit Court

January 28, 1992

The CEQ regulations permit federal

agencies to make a preliminary

"Environmental Assessment" ("EA")

aimed at determining whether the envi-

ronmental effects of a proposed action

are "significant." aU. Gel ve.” OS

L304. 3% 1501.4, 1508.9, sauese?

(1984). According to these regula-

tions, the EA is a "concise" document

that "briefly" discusses the relevant

issues and either reaches a conclusion

that preparation of an EIS is neces-

Sary or concludes with a "Finding of

No Significant Impact" (called in en-

vironmental jargon, a "FONSI"). Id.

§§ 1508.9, 1508.13.

Silerra Club v. Marsh, 769 F.2d at 870.

Thus, "(tj)he purpose of an EA is to

"provide sufficient evidence and analysis

for determining whether to prepare an

igaei." * Fritiofson, 772 F.2d at 1236

(quoting 40 C.F.R. § 1508.9(a)(1)). The EA

is "a rough-cut, low-budget environmental

impact statement designed to show whether a

full-fledged environmental impact state-

ment-which is very costly and time-consum-

ing to prepare and has been the kiss of

death to many a federal project-is neces-

APPENDIX A

Sth Circuit Court

January 28, 1992

sany.™ Cronin w v.38. Dept. of

Agriculture, 919 F.2d 439, 443 (7th

Cir.1990). The EA will come to one of two

findings: either that the project requires

the preparation of an EIS to detail its en-

vironmental impact, or that the project

will have no significant impact (a "FONSI")

necessitating no further study of the envi-

ronmental consequences which would ordinar-

ily be explored through an EIS. Fritiofson,

772 F.2d at 1236; Marsh, 769 F.2d at 870.

{11} When, as in this case, the agency

concludes that the preparation of an EIS is

not required based on a FONSI, an aggrieved

party may challenge the decision in federal

court under the Administrative Procedures

Act. 5 U.S.C. § 706(2) (A). Before today,

Our court instructed that a reviewing court

should apply the moderately deferential |

"reasonableness" standard-rather than the

wee TP.

highly deferential "arbitrary and capri-

A-32

APPENDIX A

Sth Circuit Court

January 28, 1992

cious" standard adopted by other circuits-

in reviewing an agency's decision to forego

an EIS. See Fritiofson, 772 F.2d at 1237.

However, in Marsh _ v. Oregon Natural

Resources Council, 490 U.S. 360, 109 S.Ct.

1851, 104 L.Ed.2d 377 (1989) ("Oregon

Natural") the Supreme Court held that an

agency's decision not to prepare a supple-

mental EIS is reviewable under the

"arbitrary and capricious" standard. This

intervening decision by the Supreme Court

warrants the abandonment of the

"reasonableness" standard. Even though

Oregon Natural involved an agency's deci-

sion not to prepare a supplemental EIS as

opposed to an agency's decision not to pre-

pare the original EIS, the "legal standard

lthe Fritiofson panel rejected an invitation to

abandon the reasonableness standard in favor of the

“arbitrary and capricious" standard adopted by

other circuits, recognizing that it could only do

so if an intervening Supreme Court decision

mandated as much.

A-33

APPENDIX A

Sth Circuit Court

January 28, 1992

for determining when a supplemental EIS is

required is ‘essentially the same as the

standard for determining the need for an

original EIS.' " Fritiofson, 772 F.2d at

1239 n. 8 (citation omitted). Oregon

Natural has plainly emasculated our prece-

dent applying the reasonableness standard

with respect to the review of an agency's

decision to forego a supplemental EIS. See

Oregon Natural, 109 S.Ct. at 1861 n. 23

(citing with disapproval our decision in

Sierra Club v. Froelhlke, 816 F.2d 205, 210

(Sth Cir.1987)). We believe that it has

similarly (*678) undercut our precedent ap-

plying the reasonableness standard with re-

spect to an eounen*s decision to forego the

original EIS. See Lockhart v. Kenops, 927

F.2d 1028, 1032 (8th Cir.) (holding that

the intervening decision of Oregon Natural

undercut Eight Circuit precedent applying

the reasonableness standard with respect

A-34

APPENDIX A

Sth Circuit Court

January 28, 1992

A Sgaits aeee

review of an agency's decision to forego

preparation of an original EIS), cert. de-

nied, - U.S. -, 112 S.Ct. 186, 116 L.Ed.2d

148 (1991). The standard of review is lim-

ited, therefore, to the "arbitrary and

capricious" standard. Id.; see also North

Buckhead Civic Ass'n, 903 F.2d at 1538

(adopting "the arbitrary and capricious

standard when reviewing agency action in

NEPA cases") .2

ewe recognize that the Eighth Circuit has held that

Oregon Natural does not control the standard of

review in a case where the issue involved is the

threshold one of whether NEPA even applies at all.

Goos v. I.C.C., 911 F.2d 1283, 1292 (8th Cir.1990).

If an agency determines that NEPA does not apply in

the first instance, and the agency makes that

determination without preparing an EA and without

making a finding of no significant impact, the

Eighth Circuit applies a reasonableness standard,

not Oregon Natural's arbitrary and capricious

standard. Id. We need not concern ourselves with

these distinctions even though there is a

substantial question presented in this case as to

whether NEPA applies at all; the Fish and Wildlife

Service decided to forego an EIS “after assuming

the applicability of NEPA, after preparing an EA,

and after determining that there was no significant

[environmental] impact." Goos, 911 F.2d at 1292.

Thus, the arbitrary and capricious standard of

review applies. Although it is arguably a more

lenient standard than the reasonableness test,

Fritiofson, 772 F.2d at 1237-38, the differences

A-35

APPENDIX A

Sth Circuit Court

January 28, 1992

(12-14] Under this highly deferential

standard of review, a reviewing court has

the "least latitude in finding grounds for

reversal." North Buckhead Civic Ass'n, 903

F.2d at 1538. It may not substitute its

judgment for that of the agency, but must

studiously review the record to ensure that

the agency has arrived at a reasoned judg-

ment based on a consideration and applica-

tion of the relevant factors. Id.; Oregon

Natural, 109 S.Ct. at 1861. Where con-

flicting evidence is before the agency, the

agency and not the reviewing court has the

discretion to accept pa reject from the

several sources of evidence. The agency

may even rely on the opinions of its own

experts, so long as the experts are quali-

between the two standards is not “of great

pragmatic consequence." Oregon Natural, 109 S.Ct.

at 1861 n. 23 ("{O)ur decision today will not

require a substantial reworking of NEPA."). And

under either standard, we would affirm the judgment

below.

A-36

APPENDIX A

Sth Circuit Court

January 28, 1992

fied and express a reasonable opinion. The

reviewing court may be inclined to raise an

eyebrow under such circumstances, but it

must show the proper respect for an

agency's reasoned conclusion even if the

reviewing court finds the opinions of other

experts equally or more persuasive. Oregon

Natural, 109 S.Ct. at 1861.

A reviewing court is to review the ad-

ministrative records as well as other

evidence to determine whether the

agenc([y] adequately considered the

values set forth in NEPA and the po-

tential environmental effects of the

project. before reaching a decision on

whether an environmental impact state-

ment was necessary. If the agenc([y]

engaged in this analysis and reason-

ably concluded on the basis of [its]

findings that an impact statement was

not required, [its] determination[ ]

will be upheld.

Hassell, 636 F.2d at 1097-98. 3

3Hassell applied the “reasonableness" standard.

Nevertheless, we believe that the inquiry under the

“arbitrary and capricious standard" is clearly not

more rigorous (though also only slightly more

deferential) than that articulated in Hassell. See

Oregon Natural, 109 S.Ct. at 1861 n. 23 ("“[T]he

difference between the ‘arbitrary and capricious'

A-37

APPENDIX A

Sth Circuit Court

January 28, 1992

el |

;

[15] [16] When a court like ours is asked

to review the decision of a district court

which has sat as the reviewing court of

first instance, the standard of review that

we apply will vary depending on the course

of proceedings below. If the district court

has conducted an evidentiary hearing, and

has drawn factual inferences and made cred-

ibility determinations, we must give great

deference to the district court's conclu-

sions.

A court of appeals review of a dis-

trict court review of an administra-

tive agency's (*679) record is indeed

an “awkward legal animal," but when

the district court's judgment turns on

factual matters, or upon the testimony

of witnesses, or even upon lengthy ev-

identiary proceedings, the court of

appeals should hesitate to reverse.

Pe ere ee ee

North Buckhead Civic Ass'n, 903 F.2d at

1539. Where, as here, the district court

FP ee ee a ee eee

has resolved the case by way of summary

and ‘reasonableness' standards is not of great

pragmatic consequence.").

A-38

APPENDIX A

Sth Circuit Court

January 28, 1992

ee a a ee

judgment, our review of the district

court's conclusions is plenary. We under-

take the same task as the district court:

we review the materials submitted to the

district court (which will include the

agency record) and determine whether the

agency's conclusions were arbitrary and

capricious. Marsh, 769 F.2d at 872 (1st

Cir.1985). Because the district court's re-

view pursuant to a summary judgment motion

cannot turn on credibility determinations

or conflicting factual inferences,

International Shortstop, Inc. v. Rally's,

Inc., 939 F.2d 1257, 1264 (Sth Cir.1991),

we are in precisely the same position as

the district court and can evaluate the

record de novo.

PHASE IV

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tee ee eS oa lay, ~~ 11a as we a 1ertaKe a jw~=

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aANMOoAITN Fs n

APPENDIX A

- ~~ eres Carr

-_* a a et eee Ne

. m An 50%

anuary 25, > » 4

federal action which significantly affected

the environment. It prepared an EA which

"adequately considered the environmental

consequences of its actions." 745 F.Supp.

at 402. The EA came to a finding of no

Significant impact (FONSI), and accord-

ingly, the Fish and Wildlife Service did

not find it necessary to prepare an EIS in

connection with the acquisition of the

easement. After a painstaking review of

the agency record, the district court con-

cluded that there was no clear error in the

Fish and Wildlife Service's decision. We

agree. As the district court observed:

The [Fish and Wildlife Service]'s ac-

tion in this case does not alter the

environmental status quo; it does not

cause any change in the physical envi-

ronment. Indeed the purpose of the

acquisition of the easement is to

foreclose any change in the physical

environment of a particular wetland

site. As the Court observed in

National Association of Property

Owners [v. United States], NEPA does

not require a federal agency to pre-

pare an EIS in order "to leave nature

A-40

“APPENDIX A

5th Circuit Court

January 28, 1992

alone." 499 F.Supp. [1223] at 1265

(D.C.Minn.1980) ]. NEPA may require

an EIS whenever a reservoir is built,

but NEPA does not require preparation

of an EIS whenever a reservoir is not

built.

745 F.Supp. at 394. The district court

recognized that the acquisition of the

easement by the Fish and Wildlife Service

did not effectuate any change to the envi-

ronment which would otherwise trigger the

need to prepare an EIS. "An "EIS is not

required . . . when the proposed federal

action will effect no change in the status

quo." Burbank Anti-Noise Group v.

Goldschmidt, 623 F.2€ 115, 116 (Sth

Cir.1980), cert. denied, 450 U.S. 965, 101

S.Ct. 1481, 67 L.Ed.2d 614 (1981). Simply

put, we hold that the acquisition of a neg-

ative easement which by its terms prohibits

any change in the status quo does not

amount to “major Federal action[{ ] signifi-

cantly affecting the quality of the human

environment." 42 U.S.C. § 4332(2)(C); see

APPENDIX A

Sth Circuit Court

January 28, 1992

Burbank Anti-Noise Group, 623 F.2d at 116-

17 (no EIS required where FAA provided fed-

eral financial assistance in connection

with the purchase of an airport); Sierra

Club v. Marsh, 692 F.Supp. 1210, 1221

(S.D.Cal.1988) ("It would be inconsistent

with NEPA's purpose to allow the city to

use NEPA to obstruct the implementation of

a settlement which will protect endangered

species."). An EIS need not discuss the

environmental effects of continuing to use

land in the manner which it is presently

being used. Upper Snake River v. Hodel,

921 F.2d 232, 235 (9th Cir.1980) (citing

Burbank Anti-Noise Group, 623 F.2d at 116);

see, e@.g., Hassell, 636 F.2d at 1099

(rebuilding bridge destroyed in hurricane

did not require preparation of EIS under

regulations then in effect); Committee for

Auto Responsibility v. Solomon, 603 F.2d

992, 1003 (D.C.Cir.1979) (no EIS required

A-42

APPENDIX A

Sth Circuit Court

January 28, 1992

when government leased parking lot to new

parking management because no change in the

status quo), cert. denied, 445 U.S. 915,

100 S.Ct. 1274, 63 L.Ed.2d 599 (1980).

(*680) The Supreme Court's decision in

Metropolitan Edison Co. v. People Against

Nuclear Energy makes clear that the inquiry

in NEPA cases is whether the federal action

at issue is "proximately related to a

change in the physical environment." 103

S.Ct. at 1561 (emphasis added). The acqui-

sition of a negative easement which pro-

hibits development does not result in the

requisite "change" to the physical environ-

ment. Of course, when the government con-

veys property to, or exchanges land with, a

private party that plans to develop the

land, an EIS is necessary because the con-

veyance of property is precipitating a

change in the physical complexion of the

land. Lockhart v. Kenops, 927 F.2d at 1033

A-43

APPENDIX A

Sth Circuit Court

January 28, 1992

(citing National Forest Preservation Group

Vv. Butz, 485 F.2d 408, 411-12 (9th

Cir.1973))3 Bob Marshall Alliance v.

Hodel, 852 F.2d 1223, 1227 (9th Cir.1988),

cert. denied, 489 U.S. 1066, 109 S.Ct.

1340, 103 L.Ed.2d 810 (1989); Conservation

Law Foundation of New England, Inc. v.

General Services Administration, 707 F.2d.

626, 633 (lst Cir.1983). But by merely ac-

cepting title to the property-or, as in

this case, accepting a negative easement

which precludes any development of the land

whatsoever-the government is not undertak-

ing a project that changes the character or

function of the land. See Ono v. Harper,

592 F.Supp. 698, 701 (D.Hawaii 1983) (no

EIS required where proposed transfer of ti-

tle would not cause any change in the phys-

ical environment). We view the Fish and

Wildlife Service's "action" in accepting

the negative easement as tantamount to

A-44

APPENDIX A

Sth Circuit Court

January 28, 1992

"inaction." See Defenders of Wildlife v.

Andrus, 627 F.2d 1238, 1243 (D.C.Cir.1980)

(no EIS required when federal government

decides not to exercise its authority to

prevent the State of Alaska from killing

wolves on federal land); State of Alaska

v. Andrus, 591 F.2d 537, 541 (9th Cir.1979)

(same) ; cf. Bunch v. Hodel, 793 F.2d 129,

135-36 (6th Cir.1986) (abdication of the

Fish and Wildlife Service's obligations un-

der the terms of a lease and the Migratory

Bird Conservation Act could not be viewed

as "inaction").

The agency came to a finding of no sig-

nificant environmental impact, and we de-

tect no error in that forecast.4 "The

court finds it unlikely that a no impact

finding would be held unreasonable where

4tronically, neither does the defendant-intervenor

Sierra Club, an environmental group which for the

first time, apparently, has advocated against the

need for an EIS.

A-45

APPENDIX A

Sth Circuit Court

January 28, 1992

the government seeks to acquire some addi-

tional parcels of land for environmental

mitigation purposes." Sierra Club v.

Marsh, 692 F.Supp. at 1221. The land is

earmarked is wildlife habitat and migra-

tory bird refuge. We agree with the Fish

and Wildlife Service and the district court

that this intended "use" of the Little

Sandy property has no significant environ-

mental impact. On this point, we note that

we are not altogether persuaded that the

anticipated harm to the East Texas water

supply can be precisely linked to the fed-

eral action at issue here. Although for

purposes of standing we have held that the

plaintiffs have established an injury in

fact sufficient to, bring these claims, an

EIS -is only necessary where there is

"reasonably close causal relationship be-

tween a change in the physical environment

and the effect at issue." Metropolitan

A-46

APRENDIX A

5th Circuit Court

January 28, 1992

Edison, 103 S.Ct. at 1561. Aside from the

absence of any "change" in the physical en-

vironment, we entertain serious doubts as

to whether the adverse impact on water

quality and supply expected in the year

2030 can be attributed to the Fish and

Wildlife Service's acquisition of the

Little Sandy easement. In our view, plain-

tiffs seek to stretch the parameters of

predictability to their limits. They ask

for environmental clairvoyance, though the

agency personnel-and we judges-are but mere

mortals.

We have given the record more than just a

birds-eye view, and finding no reason to

migrate from the district court’s judgment,

we take refuge in its nest.

AFFIRMED.

APPENDIX A

Sth Circuit Court

January 28, 1992

745 F.Supp. 388 (E.D.Tex. 1990)

SABINE RIVER AUTHORITY, Plaintiff,

Texas Water Conservation Association,

Plaintiff-Intervenor,

Vv.

UNITED STATES DEPARTMENT OF INTERIOR,

Donald Paul Hodel, in his official

capacity as Secretary of Interior, United

States Fish and Wildlife Service,

Frank H. Dunkel, in his official capacity

as Regional Director of the Fish and

Wildlife Service, and Little Sandy Hunting

and Fishing Club, Defendants,

The Sierra Club and the National Audubon

Society, Defendants-Intervenors.

No. TX-87-36-CA.

United States District Court,

E.D. Texas,

Texarkana Division.

Aug. 13, 1990.

Action was brought challenging the Fish

and Wildlife Service's compliance with

(*389) the National Environmental Policy

Act in connection with the proposed acqui-

Sition of a conservation easement on wet-

lands habitat. On cross motions for sum-

mary judgment, the District Court, Paul N.

Brown, J., held that: (1) the proposed ac-

quisition did not change the status quo or

have a detrimental impact on the environ-

A-48

APPENDIX A

United States District Court

August 13, 1990

ment and, thus, no environmental impact

statement was necessary; (2) the environ-

mental assessment prepared by the Fish and

Wildlife Service gave adequate considera-

tion to the need for action, to alterna-

tives, and to comments received from other

State and federal agencies; and (3) the

general plan under which the Service would

acquire easements to protect wetlands habi-

tat was not a “proposal" for major federal

action that would require an environmental

impact statement.

Claims dismissed.

William H. Burchette, Christine Ryan,

Jorden Schulte & Burchette, Washington,

O

.c., and Carl Roberts, Longview, Tex.,

Frank R. Booth, Booth & Newsome, Austin,

Tex., for Sabine River Authority and Texas

Water Conservation Ass'n, respectively.

Ruth Harris Yeager, First Asst. U.S.

Atty., Tyler, Tex., Lisa Hemmer, U.S. Dept.

of Justice, Washington, D.C., Joseph I.

Worsham, Dallas, Tex., for Federal defen-

dants and Little Sandy Club, respectively.

Wendy S. Dinner, Washington, D.C., for

Sierra Club and National Audubon Society.

MEMORANDUM OPINION AND ORDER

PAUL N. BROWN, District Judge.

Pending before the Court are Motions for

Summary Judgment filed by all parties.

After carefully reviewing all of the mo-

tions and supporting briefs, the lengthy

administrative record, and the applicable

law, the Court finds that the motions of

the defendants should be granted and those

of the plaintiffs denied.

I. BACKGROUND

Tne dispute in this case concerns the de-

cision of the Department of the Interior's

Fish and Wildlife Service ("“FWS") to accept

A-50

APPENDIX A

United States District Court

August 13, 1990

OO ree bin th ead 8 bette ah ee eh

a ee eS ee ee ny are

ee Se a eee ae

a conservation easement on 3800 acres of

land owned by the Little Sandy Hunting and

Fishing Club ("Club"). The FWS's acquisi-

tion of this easement conflicts with the

plans of plaintiff Sabine River Authority

("SRA") to construct the Waters Bluff

Reservoir. If constructed, the reservoir

would inundate the lands encompassed by the

easement.

Before acquiring the easement, the FWS

prepared a draft environmental assessment

("EA") of the proposed acquisition pursuant

to Department of Interior regulations im-

plementing the review process mandated by

the National Environmental Policy Act, 42

U.S.C. § 4332 ("NEPA"). (AR. P).' The FWS

also conducted a public hearing on the pro-

posed acquisition. (AR. I). Thereafter,

the FWS issued a final EA recommending ac-

quisition of the easement. (AR. D). The

1 “aR* refers to the Administrative Record.

A-51

4

United States District Cour

99

a

August 13, 1

APPENDIX A

Ct

0

FWS also issued a “Pinding | of No

Significant Impact" ("FONSI") setting forth

the FWS's conclusion that NEPA did not re-

quire the FWS to prepare an environmental

impact statement ("EIS") concerning its ac-

quisition of the easement. (AR. G-79).

The FWS then accepted the easement.

Plaintiffs' Claims

‘SRA contends that the FWS's FONSI and de-

cision not to prepare an EIS concerning its

acquisition of the easement violated the

provisions of NEPA. SRA claims that the

FONSI is erroneous because acquisition of

the easement is a “major Federal action [ ]

Significantly affecting the quality of the

human environment" that requires the prepa-

ration of an EIS. SRA also claims that the

FWS's EA is inadequate in several respects

and that this matter should be remanded to

the FWS for further consideration.

Finally, SRA alleges that the acquisition

A-52

APPENDIX A

United States District Court

August 13, 1990

a -_.

of the easement violated the Fish and

Wildlife Act, 16 U.S.C. § 742a et seq. and

the Refuge Recreation Act, 16 U.S.C. § 460k

et seq., because the terms of the easement

do not provide for a right of access for

the public.

Plaintiff-Tntervenor Texas Water

Conservation Association ("TWCA") also con-

tends that the FWS should have prepared an

EIS concerning its acquisition of the ease-

ment. In addition, TWCA asserts that the

FWS's Texas Bottomlands Hardwood

Preservation Program ("Preservation

Program") is itself a “major Federal action

[ ] significantly affecting the quality of

the human environment" and that the FWS

should have prepared an EIS concerning the

Preservation Program.

The FWS and the Defendant-Intervenors

Sierra Club and National Audubon Society

(*392) contend that the FONSI 1s correct

A-53

APPENDIX A

United States District Court

August 13, 1990

since the easement preserves the

"environmental status quo" by prohibiting

development on the land encompassed by the

easement. The FWS also contends that its

EA was adequate and that it was not re-

quired to prepare an EIS concerning the

Preservation Program. Finally, the FWwSs

asserts that the terms of the easement do

not violate the provisions of either the

Fish and Wildlife Act we the Refuge

Recreation Act.

II. STANDARD OF REVIEW

(1] The standard of review that this

Court must apply to this case is set forth

in State of Louisiana v. Lee, 758 F.2d 1081

(5th Cir.1985), cert. den., 475 U.S. 1044,

106 $.Ct. 12359, oF L.Ed.2d 570 (1986).

NEPA requires the preparation of an

[EIS] whenever a major federal action

Significantly affecting the quality of

the human environment is proposed.

Judicial review of an agency's de-

cision not to file an [EIS] is gov-

erned by the rule of reasonableness

A-54

APPENDIX A

United States District Court

August 13, 1990

whether the agency['s] decision

not to develop an impact statement is

reasonable and made objectively and

made in good faith on a reviewable en-

vironmental record. .. . If the de-

cision is reasonable, the determina-

tion must be upheld.

Id. at 1083.

The plaintiffs' burden in presenting a

NEPA claim is also well-established.

(T]he court must determine whether the

plaintiff has alleged facts which, if

true, show that the recommended pro-

ject would materially degrade any

aspect of environmental quality

If the court concludes that no envi-

ronmental factor would be signifi-

cantly degraded by the project, [the]

determination not to file the [EIS]

should be upheld. On the other hand,

if the court finds that the project

may cause a significant degradation of

some human environmental factor (even

though other environmental factors are

affected beneficially or not at all),

the court should require the filing of

an impact statement ”

Id. at 1084.

The plaintiff “must establish only that

the [defendant] was unreasonable in con-

cluding there was no reasonable possibility

that the proposed action would signifi-

A-55

APPENDIX A

United States District Court

August 13, 1990

|

cantly degrade any environmental factor."

Id. at 1085.

The Supreme Court has held that an

agency's decision not to file an EIS should

be reviewed under the “arbitrary and capri-

cious" standard. Marsh v. Oregon Natural

Resources Council, 490 U.S. 360, -, 109

S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989).

The Court suggested that there is little ¢r

no difference between this standard and the

"reasonableness" standard that had’ been ap-

plied heretofore by courts in most of the

Circuits, including the Fifth Circuit. 490

U.S. at -, 109 §.Ct. at 1661 n. 23. In ap-

plying this standard of review, a court

“must consider whether the decision [not to

prepare an EIS] was based on a considera-

tion of the relevant factors and whether

there has been a clear error in judgment".

490 U.S. at -, 109 S.Ct. at 1861.

A-56

APPENDIX A

United States District Court

August 13, 1990

dee ae ee” ee laine aaa |

An agency's decision not to prepare an

EIS may be erroneous for one of two differ-

ent reasons. The evidence in the record

may indicate that, “contrary to the FONSI,

the agency's proposed action may have a

Significant impact on the human environ-

ment", or the record may show that the

agency's NEPA review process was “flawed in

such a manner that it cannot yet be said

whether the [proposed action] may have a

significant impact". Fritiofson V.

Alexander, 772 F.2d 1225, 1238 (5th

Cir.i1985). If a court finds that the pro-

posed action may have a significant impact,

the court should order the agency to pre-

pare an EIS. Id. On the other hand,

should the court determine that the

agency's review was inadequate, the court’

should remand the case to the agency for

further proceedings to correct the inade-

quacies. Id.

APPENDIX A

United States District Court

August 13, 1990

III. REVIEW OF THE FONSI

[2] An agency need not prepare an EIS for

actions that do not “significantly affect [

} the quality of the human environment".

Citizen Advocates for Responsible

Expansion, Inc. v. Dole, 770 F.2d 423, 432

(Sth Cir.1985). In determining whether.

(*393) particular agency actions

"Significantly affect [ ] the quality of

the human environment", courts have ana-

lyzed an agency's action to determine

whether those actions may alter the

“environmental status quo" or cause a ~-

“significant degradation of some human en-

vironmental factor".

A federal agency proposing an action must

prepare an environmental impact statement

if that action may cause “a change in the

{environmental} status quo." Sierra Club

v. Hassell, 636 F.2d 1095, 1099 (5th

A-58

APPENDIX A

United States District Court

August 13, 1990

Cir.1981).2 Any agency action that “may

cause a significant degradation of some hu-

man environmental factor" also requires the

preparation of an EIS. State of Louisiana

v. Lee, 758 F.2d at 1086. Lee and Hassell

de not set forth different tests, however,

since any action that “may cause a signifi-

cant degradation" of the environment cer-

tainly may cause "a change in the environ-

mental status quo". Whether a federal

agency's action "may cause a significant

degradation of some human environmental

factor" is analyzed in light of the

"environmental status quo" existing at the

time of the proposed action. Id.

2 See also Sierra Club v. F.E.R.C., 754 F.2d 1506,

1510 (9th- Cir.1985); Committee for Auto

Responsibility v. Solomon, 603 F.2d 992, 1002-03

(D.C.Cir.1979), cert. den., 445 U.S. 915, 100 S.Ct.

1274, 63 L.Ed.2d 599 (1980); Burbank Anti-Noise

Group v. Goldschmidt, 623 F.2d 115, 116-17 (9th

Cir.1980, cert. den., 450 U.S. 965, 101 S.Ct. 1481,

67 L.Ed.2d 614 (1981).

A-59

APPENDIX A

United States District Court

August 13, 1990

The principle underlying the determina-

tion of whether an agency's action may

“significantly affect [ ] the quality of

the human environment", by altering the

"environmental status quo” or causing "a

Significant degradation of some human envi-

ronmental factor" is that NEPA applies only

to those federal actions whose effects may

cause changes in the physical environment.

NEPA's legislative history shows that

Congress was only concerned with the ef-

fects of federal actions that may cause

changes in the physical environment. “What

is involved [in NEPA] is a congressional

declaration that ... . we will not inten-

tionally initiate actions which do ir-

reparable damage to the air, land, and wa-

oars.“ «* Metropolitan Edison on

People Against Nuclear Energy, 460 U.S.

766, V7a-73, 103. §.Ch.. 4338) i560, 75

L.Ed.2d 534 (1983), citing, 115 Cong.Rec.

A-60 :

APPENDIX A

United States District Court

August 13, 1990

i claiiiiaialiianiiiiaaaaaiitel

40416 (1969) (Emphasis original). Indeed,

a change in the physical environment is the

sine qua non of any action that alters the

“environmental status quo" or causes a

“significant degradation of some human en-

vironmental factor".

Courts have recognized that federal ac-

tions that do not change the status quo of

the physical environment do not require the

preparation of an EIS under NEPA.% For ex-

ample, in Ono v. Harper, 592 F.Supp. 698,

701 (D. Hawaii 1983), local governmental

authorities sued to block the transfer of

federally owned land to private individu-

als. The Court stated that “the focus of

an [EIS] is the change in the physical en-

vironment caused by the federal action at

issue" and dismissed the local authorities’

NEPA claim because the authorities had not

alleged that the transfer of title to the

APPENDIX A

district Court

August 13, 1990

land would cause any change in the physical

environment. Id. at 701. In National

Association of Property Owners v. United

States, 499 F.Supp. 1223 (D.Minn.1980),

aff'd, 660 F.2d 1240 (8th Cir.1981), cert.

den., 455 U.S. 1007, 102 S.Ct. 1645, 71

L.Ed.2d 876 (1982), the district court re-

jected a challenge to the implementation of

restrictions on recreational activities in

a federally-designated wilderness area un-

der the Boundary Waters Canoe Area

Wilderness Act, based upon the claim that

an EIS was required before the restrictions

could be implemented. 499 F.Supp. at 1264-

66. The Court held that implementation of

the restrictions on activities in the

wilderness area did not “significantly af-

fect [ ] the quality of the human environ-

ment". Id. at 1265.

(T]he Secretary's implementation of

the Act enables no person to signifi-

cantly affect the Wilderness. In

A-62

APPENDIX A

United States District Court

August 13, 1990

fact, plaintiffs' major complaint is

simply that Congress' mandate to the

Secretary will effectively close por-

tions of the Wilderness. .. . In

essence, plaintiffs' claim is that the

Department of Agriculture must prepare

an (*394) EIS in order to leave nature

alone. The Court is not moved by this

argument.

Finally, the principle that NEPA applies

only to those federal actions that may

cause changes in the physical environment

is supported by the corollary principle

that NEPA does not require an agency to

consider those potential effects of a pro-

posed action that do not have a “reasonably

close causal relationship [to] a change in

the physical environment caused by the ma-

jor federal action at issue". Metropolitan

Edison, 460 U.S. at 774, 103 S.Ct. at 1561.

"(T]he congressional concerns that led to

the enactment of NEPA suggest [ ] that the

terms ‘environmental effect' and

‘environmental impact' in [NEPA] be read to

A-63

APPENDIX A

United States District Court

August 13, 1990

include a requirement of a reasonably close

- causal relationship between a change in the

Physical environment and the effect at is-

sue." Id. at 774, 103 S.Ct. @6 i362.

any alleged effects of an

’

——

Accordingly

agency's action that do not have a reason-

ably close causal relationship to a change

in the physical environment caused by the

agency's action are not within the scope of

NEPA and can not form the basis of a NEPA

claim.

In summary, whether the FWS should have

prepared an EIS concerning its acquisition

of the conservation easement depends upon

whether the FWS's action is one that may

“significantly affect [ ] the quality of

the human environment", which, in turn, de-

pends upon (1) whether the FWS's action may

cause “a significant degradation of some

human environmental factor" through a

change in the physical environment, and (2)

A-64

a APPENDIX A

United States District Court

— August 13, 1990

whether the allegedly significant effects

of the FWS's action have a reasonably close

causal relationship to any change in the

physical environment caused by the FWS's

action.

No Change in the Status Quo

[3] The FWS's action in this case does

not alter the environmental status quo; it

does not cause any change in the physical

environment. 4 Indeed the purpose of the

acquisition of the easement is to foreclose

any change in the physical environment of a

particular wetland site. As the Court ob-

served in National Association of Property

Owners, NEPA does not require a federal

4The FONSI issued by the FWS is also consistent

with FWS regulations that categorically exclude

from the NEPA review process

[t]he acquisition of land in accordance with

the Service's procedures, when the

acquisition is from a willing seller, the

acquisition planning process has been

performed in coordination with the affected

public and continuance of essentially the

existing use is planned.

Department of the Interior Department Manual, 30 AM

2, Ex. 4, 516 DM 6 App. 1, 1.4A(4) (4/39/84).

A-65

APPENDIX A

United States District Court

August 13, 1990

agency to prepare an EIS in order “to leave

mature alone". 499 F.Supp. at 1265. NEPA

may require an EIS whenever a reservoir is

built, but NEPA does not require prepara-

tion of an EIS whenever a reservoir is not

built.

Under State of Louisiana v. Lee, the

plaintiffs' burden in this case is to al-

lege facts which, if true, would show that

the FWS's action may cause “a significant

degradation of some human environmental

factor" through a change in the physical

environment. The plaintiffs have failed to

Sustain this burden. The Court finds that

when the FWS acquires an interest in land,

such as a conservation easement, for the

express purpose of preserving the land in

its then-existing natural state, there is

no reasonable possibility that such action

may cause “a significant degradation of

A-66

APPENDIX A

United States District Court

August 13, 1990

PO eae ee

sie sl cite hii tte i anit ee eh,

some human environmental factor" through a

change in the physical environment.

Absence of a Causal Connection

[4] As indicated by the Court in

Metropolitan Edison, NEPA requires that

federal agencies consider only the effects

of actions that have a reasonably close

causal relationship to changes in the phys-

ical environment caused by those actions.

The alleged "effects" of the FWS's action

in this case are the "elimination" of a po-

tential water supply--the Waters Bluff

Reservoir--and the risk that the area

served by the SRA will suffer water short-

ages in the future if the reservoir is not

built. The plaintiffs allege that

[a]cquisition of the Club easement and

placement of that easement in the refuge

system immediately injured the interests

(*395) of the SRA and others of TWCA'S

members by eliminating the Waters Bluff

Reservoir and setting in motion the ef-

fects that followed the elimination of

that water supply.

A-6

APPENDIX A

United States District Court

August 13, 1990

Pee |

The harmful effect that the plaintiffs

claim the FWS's action will have on the en-

vironment is the result of what the FWS's

action prevents SRA and others from doing.

Thus, the plaintiffs' claim presents the

converse of the typical NEPA claim, which

usually involves federal actions that ini-

tiate or permit development of natural re-

sources. This case poses the novel ques-

tion of whether NEPA requires consideration

of the effects of federal actions when the

effects of those actions are to foreclose

development or use of some natural re-

source. The answer to this question is

that NEPA does not require a federal agency

to consider such effects since those ef-

fects result from what the federal action

prohibits third parties from doing, and not

from any “changes in the physical environ-

ment caused by the federal action" itself.

A-68 |

APPENDIX A |

United States District Court

August 13, 1990

The cases cited by SRA and TWCA to support

their position are inapposite.

TWCA cites the case of Environmental

Defense Fund, Inc. v. Andrus, 596 F.2d 848

(9th Cir.1979) for the proposition that a

change in the use of water resources caused

by federal action requires the preparation

of an EIS. In Andrus, the Department of

the Interior decided to implement a program

of marketing substantial amounts of water

for industrial uses from two existing

reservoirs. The diversion of water re-

sources affected both the prospects of fu-

ture industrial development and the amount

of water available for irrigation down-

stream from the reservoir. The Court of

Appeals held that the program was a "major

federal action* under NEPA that required

the preparation of an EIS. Id. at 851-52.

Andrus can be readily. distinguished from

this case on the following basis.

A-69

APPENDIX A

United States District Court

August 13, 1990

In Andrus, the diversion of existing wa-

ter supplies from two existing reservoirs

had the effect of altering the amount of

water available to agricultural users in

order to allocate additional water re-

sources for industrial users. The federal

action in Andrus clearly had an effect that

changed the physical environment. [In this

case, there is no existing reservoir, there

is no diversion of any existing water re-

sources, and there is no change in the

Physical environment as a result of the ac-

quisition of the easement by the Fws.

The other cases cited by the plaintiffs

for the proposition that federal actions

that may create “water-supply problems" al-

ways require the preparation of an EIS all

concern the potential effects that commer-

cial or iianerian development may have

upon water supplies. See e.g. City of

Davis v. Coleman, 521 F.2d 661 (9th

A-70

APPENDIX A

United States District Court

August 13, 1990

Cir.i975i. yet commercial or industrial

development can not take place absent some

change in the physical environment. In

Coleman, the federal action at issue was

the proposed construction of a freeway in-

terchange. The Court held in that case

that the City of Davis had Standing to

prosecute a claim under NEPA since the city

alleged that “the planned industrial devel-

opment which the interchange will make pos-

sible may adversely affect the quality and

quantity of the city water supply because

of increased use and the danger of contami-

nation by industrial wastes". Id. at 671.

Commercial or industrial development and

preservation are not synonymous under NEPA,

and the FWS's acquisition of a conservation

easement does not pose a "“water-supply

problem" that requires the preparation of

an EIS.5

Sanother case cited by the plaintiffs, Goodman

A-71

APPENDIX A

United States District Court

August 13, 1990

The alleged effects of the FWS's action

in this case are analogous to the effects

analyzed in Metropolitan Edison and are

likewise beyond the scope of NEPA. In

Metropolitan Edison, the Nuclear Regulatory

Commission prepared an EIS concerning the

relicensing of a nuclear-powered electrical

generating station. Although the

Commission considered the risk of a nuclear

accident in its EIS, it decided not to

(*396) consider the effect of this risk

upon the psychological health of those who

lived near the power plant. The Supreme

Court observed that

a risk of an accident is not an effect on

the physical environment [and] is, by

definition, unrealized in the physical

world. .. . We believe that the element

of risk lengthens the causal chain beyond

the reach of NEPA. . i

Group, Inc. v. Dishroom, 679 F.2d 182 (9th

Cir.1982) does not address “*watersupply problems",

but instead holds that socioeconomic impacts of a

federal action do not trigger NEPA's requirement of

- an EIS. Id. at 185-86.

A-72

APPENDIX A

United States District Court

August 13, 1990

fone nab ten Dia art Ne

Metropolitan Edison, 460 U.S. at thay ave

S.ct. at 1562. The same element of risk is

present in the alleged effects of the FWS's

action in this case.

One effect of the FWS's action is that as

long as the easement remains in the

National Wildlife Refuge System, SRA can

not build the Waters Bluff reservoir.

Although federal law provides certain pro-

cedures by which land may be released from

the Refuge System, there is certainly a

risk that SRA may not convince either the

Congress or the Secretary of the Interior

to relinquish the easement.® According to

SRA, failing to build the Waters Bluff

6No land that is a part of the Refuge System may

be disposed of except by Act of Congress unless (1)

the Department of the Interior and the Migratory

Bird Conservation Commission determine that such

lands are no longer needed for wildlife refuge

purposes and the Department is paid the fair market

value of the land, (2) the Department acquires

other lands by exchange, or (3) such land is

transferred pursuant to the terms of a cooperative

agreement with a state or local government, by

which agreement the land originally became part of

the refuge system. 16 U.S.C. s 668dd(a) (3).

A-73

APPENDIX A

United States District Court

August 13, 1990

reservoir also creates a risk that SRA will

face water shortages in the future that

will adversely affect the economic welfare

of the region that SRA serves. Yet a risk

that the reservoir will never be built and

that water shortages may occur in the fu-

ture as a result is not an effect on the

“physical environment". Metropolitan

Edison, 460 U.S. at 775, 103 S.Ct. at 1562.

There is no causal relationship between

such speculative effects and any change in

the physical environment caused by the ac-

quisition of the easement. The element of

risk inherent in the alleged effects of the

FWS's action in this case “lengthens the

causal chain beyond the reach of NEPA".

Id. The Court finds that the effects of

the FWS's action upon the plaintiffs are

not within the scope of NEPA and can not

form the basis of a NEPA claim.

A-74

APPENDIX A

United States District Court

August 13, 1990

Plaintiffs' Claims are Contrary to

NEPA's Purpose

(5] The FWS's EA reveals that the FWS ad-

equately considered the fact that SRA

wanted to acquire the Club's land for an

alternative use, but the FWS nevertheless

chose to acquire the easement. (AR. D p.

20-21). A careful analysis of the plain-

tiffs' claims makes it abundantly clear

that the plaintiffs simply object to the

FWS's policy of acquiring conservation

easements on wetland habitat where doing so

poses a hindrance to the construction of

reservoir projects. The plaintiffs' dis-

agreement with the FWS is more akin to a

political dispute over policy choices than

a legal dispute over compliance with the

procedural requirements of NEPA. Cz.

Foundation on Economic Trends v. Lyng, 817

F.2d 882, 886 (D.C.Cir.1987). “Neither the

language nor the history of NEPA suggests

A-75

APPENDIX A

United States District Court

August 13, 1990

that it was intended to give citizens a

general opportunity to air their policy ob-

jections to proposed federal actions

[t]he political process, and not NEPA, pro-

vides the appropriate forum in which to air

policy disagreements." Metropolitan

Edison, 460 U.S. at 777, 103 S.Ct. at 1563.7

To permit the plaintiffs to use the

provisions of NEPA to voice their policy

objections to the FWS's actions and to

hinder the FWS's attempts to fulfill its

mandate from Congress would be contrary to

the purposes of NEPA. |

An analogous situation was presented in

the case of Sierra Club v. Marsh, 692

F.Supp. 1210 (S.D.Cal.1988). In that case,

a city applied for an injunction to pro-

hibit the transfer of certain property from

7 Legislation that would withdraw the Club Easement

from the Refuge System is now pending before the

Marine and Fisheries Committee in the House of

Representatives.

A-76

APPENDIX A

United States District Court

August 13, 1990

a private party to the United States pur-

Suant to an agreement to settle a lawsuit.

The city desired to develop the property in

accordance with a local development plan.

If (*397) transferred, the land would be

used as a wildlife refuge, in mitigation

for other land involved in the construction

of a local highway/flood control project.

The city passed an ordinance that imposed

certain conditions upon the transfer which

would have rendered the land useless as a

wildlife refuge. Id. at 1215. The Court's

discussion of the city's claim has particu-

lar relevance to this case.

The federal government is trying to dis-

charge its obligations under a high pri-

ority federal program to protect endan-

gered species. A private landowner wants

to donate the land to the government to

effectuate these purposes. The City of

Chula Vista has passed a local resolution

in an attempt to stymie any transfer of

the property which it believes does not

serve the City's interests, which it has

defined as development in strict accor-

dance with its [local development plan).

A-77

APPENDIX A

United States District Court

August 13, 1990

‘

Id. at 1215.

The Court found that the City's NEPA

claim presented “the anomalous situation in

which a municipality is trying to use fed-

eral environmental laws as a means of pro-

tecting a plan for desired local commercial

and residential development". Id. at 1221.

The Court rejected the city's NEPA claim on

the grounds that "“[{i]Jt would be inconsis-

tent with NEPA's purposes to allow the city

to use NEPA to obstruct [the land transfer]

which will protect endangered species."

Id.

In this case, the FWS is attempting to

carry out an express mandate from Congress

to acquire and protect wetland habitat.

It. is the purpose of this Act to promote,

in concert with other Federal and State

Statutes and programs, the conservation

of the wetlands of the Nation ... by (2)

intensifying efforts to protect the wet-.

lands of the Nation through acquisition

[of wetlands] in fee, easements or other

interests

A-78

APPENDIX A

United States District Court

‘ieee August 13, 1990

Emergency Wetlands Resources Act of 1986,

16 U.S.C. § 3901(b) (2).

This case also presents the anomalous

circumstance of a governmental entity at-

tempting to use the provisions of NEPA to

protect its plan to develop natural re-

sources in a manner that will unquestion-

ably result in substantial changes in the

physical environment. To permit the plain-

tiffs to use the federal environmental laws

to this end and to hinder the FWS's efforts

to carry out its directive from Congress

would be contrary to the purposes of NEPA

and contrary to the FWS's mandate under

§ 2(b) (2) of the Emergency Wetlands

Resources Act.

Plaintiffs lack Standing under NEPA

[6] To have standing to challenge the

FWS's action under NEPA, the plaintiffs

must show that they have been adversely af-

fected by the FWS's action within the mean-

A-79

APPENDIX A

United States District Court

August 13, 1990

‘ion of NEPA. See Lujan v. National

Wildlife Federation, --- U.S. ----, 110

$.Ct. . 3177. 33809-6866, i321 &.84.28 695

(1990). In other words, the plaintiffs

must establish that the injury of which

they complain “falls within the zone of in-

terests sought to be protected by the

Statutory provision whose violation forms

the legal basis of [the] complaint". Id.

110 S.Ct. at 3186. The Court's finding that

the plaintiffs' claims are not within

NEPA's scope and that they are contrary to

NEPA's purpose compels the conclusion that

the plaintiffs lack standing to assert a

claim under NEPA. The plaintiffs' interest

in constructing a reservoir is unquestion-

ably an interest that is subject to the

provisions of NEPA, but it is not an inter-

est that NEPA was designed to protect.

A-80

APPENDIX A

United States District Court

; August 13, 1990

Summary

The Court finds that the FWS's decision

not to prepare an EIS concerning the ease-

ment acquisition was not arbitrary and

capricious; the FWS adequately considered

all relevant factors, and there is no clear

error in its judgment. Marsh v. regon

Natural Resources Council, 490 U.S. at ----

, 109 §.Cct. at 1861. The FONSI issued by

the FWS is correct since there is “no rea-

sonable possibility” that the FWS's action

will cause “a significant degradation of

some human environmental factor" through a

change in the physical environment. Stace

of Louisiana v. Lee, 758 F.2d (*398) at

1085. Furthermore, the plaintiffs' claims

are not within the scope of NEPA because

(1) the alleged effects of the FWS's action

lack the requisite causal relationship to

any change in the physical environment

caused by the acquisition of the easement,

A-81

APPENDIX A

United States District Court

August 13, 1990

Metropolitan Edison, 460 U.S. at 773, 103

$.ct. as 206he and (2) the plaintiffs'

claims are an improper attempt to use the

provisions of NEPA to hinder the FWS in

Carrying out its mandate from Congress to

acquire and preserve wetland habitat. For

these same reasons, the plaintiffs also

lack standing to assert a claim under NEPA,

Since the plaintiffs' alleged injury is not

within the “zone of interests" that NEPA

was designed to protect.

IV. ADEQUACY OF THE EA

(7] As an alternative to their contention

that the FONSI is incorrect, the plaintiffs

contend that the EA prepared by the FWS is

inadequate in several respects and that the

case should be remanded to the Fws for fur-

ther consideration. The Court has care-

fully reviewed the EA in light of the ad-

ministrative record and the applicable law

and finds that the EA is adequate.

A-82

APPENDIX A

United States District Court

August 13, 1990

ea

Preparation of an EA is the proper proce-

dure for an agency to utilize in determin-

ing whether to prepare an EIS concerning a

proposed action. Vieux Carre Property

Owners, Residents and Associates, Inc. Vv.

Pierce, 719 F.2d 1272, 1281 (5th Cir.1983);

40 C.F.R. § 1508.9(a)(1). Federal agencies

have a duty to prepare a reviewable admin-

istrative record, and a court must review

the reasonableness of the agency's determi-

nation on the basis of the information

available to the agency at the time the EA

was prepared. Citizen. Advocates for

Responsible Expansion, Inc. Vv. Dole, 770

F.2d at 433. NEPA ‘does not mandate any

particular result of the review process but

only requires that federal agencies take a

“hard look* at the environmental conse-

quences of a proposed action before such

action is indetteken. Robertson v. Methow

Valley ee pone Council, 490 0.8. 334, -"-*

A-83

APPENDIX A

United States District Court

August 13, 1990

» 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351

(1989). As long as an agency adequately

considers the consequences of its proposed

action, NEPA does not prohibit the agency

from concluding that the benefits of its

action outweigh its costs. Id. “NEPA

merely prohibits uninformed--rather than

unwise--agency action." Id.

Consideration of the Need for Action

(8] In this case, the FWS selected the

land owned by the Club for possible acqui-

Sition on the basis of the findings of a

biological survey conducted at the FWS's

request. (AR. A). The survey identified

. the Club's land as a particularly valuable

site of wetlands habitat, habitat that nu--

merous studies had indicated was rapidly

diminishing. (AR. A-IV). The FWS used the

findings of the biological survey in com-

piling the Concept Plan and Land Protection

Plan. (AR. C, p. 3). The FWS's reliance

A-84

APPENDIX A

United States District Court

August 13, 1990

on the survey data to evaluate the impor-

tance of acquiring the conservation ease-

ment on the Club land was clearly reason-

able.

Consideration of Water-Supply Issues

(9] Both the survey and the Concept Plan

identified planned reservoir projects as a

principal source of conflict with preserva-

tion of wetland sites in eastern Texas.

tam. 8, ©. 133); The survey specifically

excluded wetlands sites that might conflict

with planned reservoir projects. (AR. A-

II). In evaluating the extent of the con-

flict between wetlands sites and planned

reservoir projects, the FWS relied upon the

1984 Texas Water Plan developed by the

Texas Department of Water Resources. (AR.

H). The FWS's reliance on the Water Plan's

data and projections concerning future

reservoir projects and water supplies was

reasonable in light of the fact that the

A-85

APPENDIX A

United States District Court

August 13, 1990

Water Plan is “designed to be a state- wide

comprehensive estimation of the future wa-

ter demands and supplies for all of Texas

over a 50-year planning period". (Amicus

Brief of the State of Texas at p. 8).

Although Waters Bluff was not listed as a

planned reservoir in the Water Plan, the

FWS nevertheless reviewed the SRA's Master

Plan Update which contained SRA's own water

supply projections to support its conclu-

Sion that Waters Bluff is a feasible and

necessary reservoir project. (AR. D, p.

(°399) 13, 30: Am L--N). SRA's Master

Plan Update relied on the Water Plan to’

provide “some of the basic data sources

utilized in the projections of future basin

water requirements". (AR. M, p. 1-6). The

record indicates that the FWS fully consid-

ered the available data on future water

supply needs of the Sabine River Basin con-

tained in both the Water Plan and SRA's

A-86

APPENDIX A

United States District Court

August 13, 1990

Master Plan Update. The final EA issued by

the FWS contains an adequate discussion of

the water-supply issues raised by SRA in

its opposition to the proposed easement.

(AR. D, p. 12-16)._

There is no indication that the FWS

failed to consider pertinent data in reach-

ing its conclusion. The plaintiffs merely

disagree with the FWS's interpretation of

the available data and the conclusion that

the FWS reached. Yet “the mere existence of

differing opinions does not make {the

agency's) decision erroneous." State of

Louisiana v. Lee, 758 F.2d at 1085. This

Court can not conclude that the FWS's re-

view of the water-supply issues raised by

SRA was inadequate or that the FWS's con-

clusion was unreasonable, arbitrary or

capricious.

A-87

APPENDIX A

United States District Court

August 13, 1990

Consideration of Alternatives

(10) The plaintiffs contend that the Fws

failed to adequately consider alternatives

to acquisition of the easement. The FWS —

considered four alternatives: (1) taking

no action to preserve the Club's land, (2)

establishing a refuge in conjunction with

the Waters Bluff project, (3) acquiring the

Club's land in fee simple, and (4) acquir-

ing a less-than-fee-simple interest in the

Club's land. (AR. DBD, DBs 20-25). SRA

faults the FWS for not considering the ac-

quisition of high priority wetland habitat

outside the area of SRA's Waters Bluff pro-

ject and for failing to adequately consider

establishing a refuge in conjunction with

the Waters Bluff project.

Once an agency adequately addresses al-

ternatives to its proposed action, “the de-

cision’ of which alternative to follow is

within the agency's discretion". South

A-88

ARPENDIX A

United States District Court

August 13, 1990

Louisiana Environmental Council, Inc. v.

Sand, 629 F.2d 1005, 1017 (5th Cir.1980).

“(T]he range of alternatives that reason-

ably must be considered decreases as the

environmental impact of the proposed action

becomes less and less’ substantial".

Olmsted Citizens for a Better Community v.

United States, 793 F.2d 201, 208 (8th

Cir.1986). Although consideration of some

range of alternatives is essential to any

environmental assessment, it makes little

sense to fault an agency for failing to

consider "more environmentally sound alter-

natives to a project which it hae

[properly] determined, through its decision

not to file an impact statement, will have

no significant environmental effects any-

way". Id.; see also City of New York v.

United States Dept. of Transportation, 715

F.2d 732, 744 (2nd Cir.1983), cert. den.,

465 U.S. 1055, 104 S.Ct. 1403, 79 L.Ed.2d

A-89

APPENDIX A

United States District Court

August 13, 1990

730 (1984). Since the FONSI concerning ac-

quisition of the easement is correct, the

range of alternatives considered by the Fws

was adequate.

The FWS considered and rejected the no-

action alternative for the simple reason

that doing nothing to preserve the highest

priority site of wetland habitat would not

be consistent with the FWS's preservation

efforts and would likely permit the irre-

trievable loss of the habitat. (AR. D, p.

21). Similarly, establishing a refuge in

conjunction with the Waters Bluff project

was rejected because that alternative would

not prevent destruction of the wetland

habitat. (AR. D, p. 20-21). The FWS also

concluded that any area set aside for

refuge purposes would be of inferior qual-

ity. (AR. D, p. 20-21). This conclusion is

Supported by the report issued by the Texas

Parks and Wildlife Department which sug-

A-90

APPENDIX A

United States District Court

August 13, 1990

—_

gested that wetland sites established in

conjunction with reservoir projects are of

only “marginal" value to waterfowl popula-

tions. (AR. K-I-7, p. 18-19). Acquisition

of the Club's land in fee- simple was not

an available alternative because the Club

was not willing to sell, and the FWS was

operating under budgetary constraints that

made no-cost acquisitions especially at-

tractive. (AR. D, p. 23-24). The Court

finds that the FWS's consideration of these

alternative courses of action was adequate

and reasonable.

(*400)

Consultation with Other Agencies

[11] The plaintiffs contend that the FWS

failed to properly consult with other fed-

eral and state agencies during the NEPA re-

view process. This claim is not supported

by the evidence in the record, and it is

based on the erroneous assumption that NEPA

APPENDIX A

United States District Court

August 13, 1990

mandates inter-agency consultation before a

draft EA is prepared.

Although the applicable regulations do

not address the timing of inter-agency con-

Sultation in the preparation of an EA, the

regulations do provide that after preparing

a draft EIS and before preparing a final

EIS the agency shall obtain the comments of

other Federal agencies and request the com-

ments of appropriate State and local agen-

cies. 40 C.F.R. § 1503.1l(a)(1, 2). The

regulations further provide that an agency

shall respond to such comments. 16.

§ 1503.4(a). There is nothing in NEPA or

the applicable regulations to suggest that

the timing of consultations should be any

different when an agency prepares a draft

EA as opposed to a draft EIS.

The record indicates that the FWS circu-

lated its draft EA to all appropriate fed-

eral and state agencies. (AR. D, p. 49-50;

A-92

APPENDIX A

United States District Court

August 13, 1990

AR. G-84). The FWS then received a number

of written comments both critical and sup

portive of its proposed action. (AR. K).

The FWS also received oral and written com

ments during the public meeting concerning

the easement. (AR. I). In response to

these comments, the FWS revised its jraftt

FA to include a discussior of the alleged

controversial aspects of 1

the easement. (AR. P, p. 111; AR. D, Dp.

iii). While the draft EA contained only a

brief reference to SRA'S Waters Biurt pro

ject, the final EA contains a responsive

discussion of the water-supply issues

raised by SRA. (AR. P, p. 9; AR. D, Pp.

-

12-16). The FWS also revised the FA to ad-

rn

dress the alternative 0o establishing a

refuge in conjunction with the Waters Biu

project. (AR. P, p. 11-12; AR. D,. D- ¢

Thus, the record demonstrates rhat the FWS

considered and responded to tne somments

A AROKMM TY A

ArPrEiNws

ae | . = . — a =

nitea es Wi =e! r

raised in opposition to the easement.8 The

FWS's action was consistent with the

requirement that an agency involve the pub-

lic as well as other government agencies in

preparing an EA. See 40 C.F.R. §

1501.4(b). That the FWS chose not to agree

with the objections raised by SRA and

others does not undermine the adequacy of

the FWS's NEPA review.

30-Day Comment Period

(12) A related issue raised by the plain-

tiffs is the FWS's alleged failure to pro-

vide a 30-day comment period after the

FONSI was issued. See 40 C.F.R. §

1501.4(e) (2). This regulation mandates

8 the case cited by the plaintiffs in support of

their contention is readily distinguishable. In

Simmans Vv. Grant, ° 370 F.Supp. “5, 18-19

(S.D.Tex.1974), the Court found that the federal

agency had failed to contact, or to consider the

views of, several other agencies in preparing an EA

and a FONSI and that there had been little or no

opportunity provided for the public to express its

views on the agency's proposed action. The record

in this case reveals no similar deficiency in the

FWS's NEPA review process.

A-94

APPENDIX A

United States District Court

August 13, 1990

such

agen

clos

requ

regu

“the

prec

Wr

tion

that

an E

ic

t .. ni

and

~**

eh

me)

fish

majo

“ pa

oe a’

an additional comment period if the

cy's proposed action [i} st6, OF 28

ely similar to, act ion that “normally

ires" the preparation of an EIS under

lations adopted by tne agency, OF (2)

nature of the action is one without

edent". § 1501.4(e) (2) (1-11)

ether the acquisition of the conserva

easement is or is similar to an action

“

“normally requires” the preparation of

IS under Department of Interior regula-

one hand, the regulations provide that

FWS proposal to establish “new refuges,

hatcheries, or research stations and

r additions to existing installations"

“normally require the preparation of

rrc* tm r a rr Tnr Yr c

Hp . Jepar -menct OL ~ LLe Inter - 4

tr Man C16 f le r

rtment Manual, 516 DM 6, App i?

] rr . lanl - eh . 4

~~ i ine reguid 10MnSsS a iZ ~ner pr IVI 12

e c

mois a

ANTODRWNT a

ArrEiiwWirn A

r r

r - 4 . + a -, - +

> Ll | a es iJ a & & JA »

that if an EIS is not prepared for such

proposals, “an EA will be prepared and han-

dled in accordance with § 1501.4(e)(2)".

Id. at 1.3B. On the other hand, the regu-

lations categorically exclude from the NEPA

process “acquisition of land in accordance

with the Service's procedures, when acqui-

sition is from a willipg seller, the acqui-

sition planning process has been performed

(*401) in coordination with the affected

public and continuance of essentially the

existing use is planned". Id. at 516 DM 6,

App. 1, 1.4A(4). The resolution of this

apparent conflict lies in a common-sense

interpretation of these provisions.

Although the effect of the FWS's actions

in this case was to create a “new refuge",

the other types of actions described in

section 1.3A(1) are sufficiently dissimilar

to the FWS's action in this case to support

the conclusion that the acquisition of a

A-96

APPENDIX A

United States District Court

August 13, 1990

conservation easement by the FWS is not the

“establishment of [a] new refuge [ ]" for

’ purposes of section 1.3A(1). "Establishment

of new ... fish hatcheries, research sta-

tions and major additions to existing in-

stallations" involves more than the mere

acquisition of a property interest such as

a conservation easement. This interpreta-

tion of section 1.3A(1) is thus fully con-

sistent with section 1.4A(4)'S categorical

exclusion of land acquisitions by the FWS

from a willing seller where a continuation

of the existing use of the land is planned-

-an apt description of the FWS's action in

this case. That the FWS prepared an EA

concerning the easement acquisition does

not undermine this conclusion because the

regulations provide that an EA "may be pre-

pared on any action [even those covered by

a categorical exclusion] at any time in

order to assist planning and decision- mak-

A-97

APPENDIX A

United States District Court

August 13, 1990

ing". Id. at 516 DM 3.23 see also 40

C.F.R. § 1508.4. Accordingly, the FWS's

action in this case was not one that would

normally require the preparation of an EIS

under regulations adopted by the FWS, nor

was it Similar to such an action.

The 30-day comment period must also be

provided if “the nature of the proposed ac-

tion is one without precedent". 40 C.F.R.

1501.4(e) (2) (ii). Whether the “nature” of

the FWS's action is “without precedent" is

largely a function of the definition one

assigns to the term “nature". If, as the

plaintiffs argue, the “nature” of the FWS's

action is the acquisition of a conservation

easement in an area where construction of a

reservoir is planned, then the action is

“without precedent" since the FWS admits

that no other conservation easements have

been acquired in an area where a reservoir

project is planned. Yet the common under-

A-98

APPENDIX A

United States District Court

August 13, 1990

standing of the term "“nature”"--the essen-

tial character of something--illustrates

that the FWS's action was not “without

precedent". The essential character of the

FWS's action is the acquisition of a con-

servation easement under circumstances that

pose a conflict with another party's de-

sired uses of the same land. The “nature"

of the FWS's action is not “without prece-

dent" since the FWS has heretofore acquired

Similar easements under circumstances “hat

also posed a conflict with other potential

uses of the same land. (An. BD, DB. Baal.

Because the FWS's action was not without

precedent, no additional comment period un-

der 40 C.F.R. § 1501.4(e) (2) was required.

Finally, even if the Court were to find

that the 30-day comment period applied sas

the FONSI in this case, the plaintiffs have

failed to .identify any additional relevant

information that they or any other party

APPENDIX A

c ak + Cc

ited States District Court

August 13, 1990

.

would have provided the FWS. Accordingly,

there is nothing to suggest that the ab-

sence of the additional comment period de-

prived the FWS of relevant information such

as would undermine the reasonableness or

adequacy of the FWS's NEPA review process.

Consideration of Controversy,

Precedent and Cumulative Effects

[13] The plaintiffs also contend that the

FWS failed to consider the extent of the

controversy surrounding its action, the

precedential nature of the action, end the

cumulative effects of acquiring additional

conservation easements. This claim is based

on regulations that provide that in deter-

mining whether a proposed action is

"significant" under NEPA, the “intensity”

Or severity of the- environmental "“impact"

of the proposed action must be considered.

40 C.F.R. § 1508.27(b). Among the several

factors listed for consideration in deter-

A-100

APPENDIX A

United States District Court

August 13, 1990

RR RT NN Ne Nave Stl ON a) setae aE

Na at od Maths be

mining “intensity” are the “degree to which

the effects on the quality of the human en-

vironment are likely to be highly contro-

versial", “the degree to which the action

may establish a precedent for future ac-

tions with significant effects", and

whether the action is related to other ac-

tions with (*402) individually insignifi-

cant but cumulatively significant impacts".

Id. at § 1508.27(b) (4, 6, 7).

The only "effects" or “impacts“ that must

be considered under NEPA, however, are

those that have a reasonably close causal

relationship to a change in the physical

environment caused by the federal action at

issue. Metropolitan Edison, 460 U.S. at

773, 103 $.Ct. at 1561. The Court has al-

ready found that the alleged effects of the

FWS's action in this case«-interterence

with SRA's plans to build Waters Bluff and

a risk of future water shortages--lack the

A-101

APPENDIX A

United States District Court

August 13, 1990

requisite causal relationship because ac-

quisition of the easement will not cause

any change in the physical environment.

Since the alleged effects of the FWS's ac-

quisition of the easement are beyond the

scope of NEPA, the factors listed in

§ 1508.27(b) are of no legal significance

to this case, because such factors are only

relevant to an evaluation of whether the

"effects" of a proposed action are

"significant" under NEPA.

The case cited by the plaintiffs, Sierra

Club v. Marsh, 769 F.2d 868 (1st Cir.1985)

does not compel a contrary finding. That

case discussed “precedent for future ac-

tions with significant effects" in the con-

text of actions taken by an agency that

would encourage tevthne commercial or in-

dustrial development. See Id. at 879.

Such is not the case here. To the extent

that the acquisition of this easement sets

A-102

APRENDIX A

United States District Court

August 13, 1990

a precedent for acquisitions of additional

conservation easements by the FWS, such fu-

ture actions would not have “significant

effects" under NEPA because the acquisition

of such easements does not cause any

“change in the physical environment".

Although the plaintiffs disagree with the

FWS's evaluation of the data compiled ia

ment is not sufficient to raise a NEPA

claim. The purpose of NEPA is to ensure

that federal agencies do not make unin-

formed, as opposed to “unwise”, decisions

that affect the environment, and so long as

an agency adequately considers tne conse-

quences of its proposed action, NEPA aoes

: : ? " , .

sKAG eS rr and nro -3r-r on alt an ant ae rare nt

not prohibit th agency from conciudin

. , , a ,

a ae a ant - So Te alll ad a _ -- ee ae | Tae _—,r

mer. be cne penerics J tn de \o & aC i a Soe IUTwWeLTdI

[reo or -< DAk - f= _ fae kh ~ ~—T,

its S-OSts KODeEITCS COClOw (aL Ley

- '

i as

aa

mJ:

APPENDIX A

nite ares istrict Court

1 2

t4yu4o ~~

Citizens Council, 490 U.S. at ----, 109

S.Ct. at 1846. The record shows that in

this case, the FWS adequately considered

the environmental consequences of its ac-

tion and that is all that NEPA requires.

V. CONCEPT PLAN NOT SUBJECT TO NEPA

[14] The plaintiffs also contend that the

FWS should have prepared an EIS concerning

the Preservation Program. Unless the

Preservation Program is a “proposal” for a

major federal action, NEPA does not require

the preparation of an EIS. See Kleppe v.

Sierra Club, 427 U.S. 390, 399, 96 S.Ct.

2718, 2725 (1976); Foundation On Economic

Trends v. Lyng, 817 F.2d 882, 885-86

(B.C. Cif. Ader! « "The mere contemplation of

certain action is not sufficient to require

an impact statement." Fritiofson v.

Alexander, 772 F.2d at 1240. Under 40

C.F.R. § 1508.23, a

A-104

APPENDIX A

° United States District Court

August 13, 1990

I

;

[p] roposal exists at the stage in the de-

velopment of an action when an agency

has a goal and is actively preparing to

make a decision on one or more alterna-

tive means of accomplishing that goal and

the effects [of the proposed action] can

be meaningfully evaluated.

After carefully reviewing the Preservation

Program as set forth in the FWS's Concept

Plan document (AR. B), the Court finds that

the Preservation Program is not a

"proposal" for major federal action under

NEPA.

The plaintiffs characterize the Concept

Plan document as a proposal for a series of

land acquisitions by the FWS. The alleged

effect of this proposal is, once again, the

"elimination" of potential reservoir sites.

As the Court discussed earlier at length,

such effects are not within the scope of

NEPA because of the absence of any causal

A-105

APPENDIX A

United States District Court

August 13, i990

connection between acquisition of conserva-

tion easements and any changes in the phys-

ical environment. For this reason alone,

the plaintiffs can not maintain a NEPA

claim concerning the Preservation (*403)

Program. Additionally, a plain reading of

the Concept Plan demonstrates that it is

nothing more than a preliminary study docu-

ment that the FWS intends to use as a basis

for making specific proposals for land ac-

quisitions in the future.

The FWS's guidelines concerning land ac-

quisitions explain that a concept plan such

as the one prepared for the Preservation

Program is only a preliminary step in the

FWS's decision making process concerning

land acquisitions. (FWS Realty Manual, 2

REM 2.10-11).9 Even after a concept plan is

prepared, land acquisitions may be rejected

9 Appendix 6, Federal Defendants' Motion for

Summary Judgment.

A-106

APPENDIX A

United States District Court

August 13, 1990

after the FWS conducts further study and

planning. 7c. It is only after such

further study and planning that the FWS

prepares a "decision document" concerning a

specific proposal for land acquisition, and

the guidelines provide that such decision

documents shall be prepared in accordance

with NEPA. Thus, the Preservation Program

Concept Plan is not a “proposal” under

NEPA, and the statements contained in the

Preservation Program Concept Plan support

this conclusion.

The majority of the Preservation Program

Concept Plan document is simply informa-

tional in nature. The Concept Plan con-

tains an extensive discussion of the types

of flora and fauna found in bottomlands

habitat. (AR. B, pp. 29- 82). There is

also an extensive review of the natural re-

sources and socio- economic features of the

Fast Texas area encompassing bottomlands

habitat. (AR. B, pp. 83-123). The state-

ments contained in the document that relate

directly to acquisition of bottomlands

habitat show that the Concept Plan does not

contain a “proposal” for land acquisitions.

In the Concept Plan, the FWS states that

[t]he purpose of this program is to iden-

tify and seek methods for preserving as

much of the remaining bottomlands habi-

tats of east Texas as possible ... A

total of 62 areas of widely varying qual-

ity have been identified .. . Not all

of these sites are being recommended for

preservation, and other areas may be

listed as additional information becomes

available.

(AR. B pm. 4).

The Concept Plan also recites that "“[a}

Stated acreage and policy objective for

[preserving] bottomlands in Texas is very

difficult, because of the infancy of the

A-108

APPENDIX A

United States District Court

August 13, 1990

«ahd gi cued (tel habe da Ms

program and the complexity of the biologi-

cal and sociological factors involved."

(AR. B, pp. 3-4). Although the Concept

Plan divides areas of bottomlands habitat

into six priority groups, the Concept Plan

specifies that the categories may be subse-

quently reviewed and revised by the FWS and

other parties. (AR. B, p. 22). Finally,

the FWS states in the Concept Plan that it

has only a “minimal amount" of information

concerning the owners of lands that encom-

pass bottomlands habitat, and that only

after the FWS contacts landowners will a

“detailed preservation plan" be prepared

for a specific site. (AR. 5B, D- 22).

These statements belie the plaintiffs'

assertion that the Concept Plan is a

“proposal” for federal action. The Concept

Plan does not identify which sites will be

acquired by the FWS, nor does it identify

which of the various suggested alternative

A-109

APPENDIX A

United States District Court

August 13, 1990

methods of preservation might be used to

acquire any particular site or category of

sites. Thus, there are no discernible

"effects" of any particular acquisition or

series of acquisitions that can be meaning-

fully evaluated under NEPA. Accordingly,

the Court finds that the FWS was not re-

quired to prepare an EIS concerning the

Preservation Program, since the Program is

not a “proposal” for major federal action.

VI. NO VIOLATION OF 16 U.S.C. § 460k

OR § 742a

(15] In its Original Complaint, SRA al-

leged that the terms of the easement re-

stricting public access to the Club's prop-

erty violated provisions of the Fish and

Wildlife Act, 16 U.S.C. § 742a, and the

Refuge Recreation Act, 16 U.S.C. § 460k.

Not only do these statutes fail to provide

any basis for SRA's claims, these statutes

A-110

APPENDIX A

United States District Court

August 13, 1990

specifically authorize the FWS's action in

this case.

(*404)

The Fish and Wildlife Act provides in

part that

The Secretary of the Interior is autho-

rized to accept any gifts, devises, or

bequests of real or personal property

for the benefit of the United States Fish

and Wildlife Service ... Such acceptance

may be subject to the terms of any re-

Strictive or affirmative covenant, or

condition of servitude, if such terms are

deemed by the Secretary CO be in accor-

dance with law and compatible with the

purpose for which acceptance is sought.

16 U.S.C. § 742£(b) (1).

The Refuge Recreation Act grants the

Secretary Similar -discretion to permit or

restrict public use of refuge areas, and to

accept donations of real property under

A-111

APPENDIX A

United States District Court

August 13, 1990

such restrictions as the Secretary may deem

to be compatible with the purposes of the

refuge areas. 16 U.S.C. § 460k. SRA has

failed to demonstrate that the FWS's accep-

tance of the easement under terms restrict-

ing the public's access to what remains

privately owned land was unreasonable, ar-

bitrary or capricious.

VII. SUMMARY

For the foregoing reasons, the Court

finds that (1) the FWS's FONSI concerning

the acquisition of the conservation ease-

ment is correct because there is “no rea-

sonable possibility" that the FWS's action

will cause "a significant degradation of

some human environmental factor“ through a

change in the physical environment; (2)

the alleged effect of the FWS's action--

“elimination of a potential reservoir

Site"--is not within the scope of NEPA be-

cause there is no causal relationship be-

A-112

APRENDIX A

United States District Court

August 13, 1990

ime Sy

tween the alleged effect and any change in

the physical environment caused by the ac-

quisition of the easement; (3) the plain-

tiffs lack standing under NEPA to challenge

the FWS's acquisition of the easement; (4)

the EA prepared by the FWS was adequate;

(5) NEPA does not require the FWS to pre-

pare an EIS concerning its Preservation

Program, as set forth in the Concept Plan,

because the Program is not a "proposal" for

a major federal action; and (6) the FWS

did not violate the Fish and Wildlife Act

or the Refuge Recreation Act by agreeing to

accept the easement under terms that re-

Strict the public's access to the Club's

property. Therefore, it is

ORDERED the Motions for Summary Judgment

filed by the plaintiff Sabine River

Authority and plaintiff-intervenor Texas

Water Conservation Association are DENIED.

It is further

A-113

APPENDIX A

United States District Court

August 13, 1990

ORDERED the Motions for Summary Judgment

filed by the defendants United States

Department of Interior and United States

Fish and Wildlife Service, Little Sandy

Hunting and Fishing Club, and defendant-in-

tervenors Sierra Club and National Audubon

Society are GRANTED, and all of the plain-

tiffs' claims against all of the defendants

are DISMISSED WITH PREJUDICE.

A-114

APPENDIX A

United States District Court

August 13, 1990

APPENDIX A

United States Department of Interior

FISH AND WILDLIFE SERVICE

POST OFFICE BOX 1306

ALBUQUERQUE, N.M. 87103

DEC 12, 1986

FINDING OF NO SIGNIFICANT IMPACT

(FONSI)

TO ALL INTERESTED GOVERNMENTAL AGENCIES AND

PUBLIC GROUPS

Based on a review and evaluation of the in-

formation contained in the references enu-

merated below, I have determined that ac-

ceptance of a perpetual non-development

easement donation, covering 3,802 acres of

privately-owned land in Wood County, Texas,

for the benefit of migratory waterfowl and

other wildlife, is not a major Federal ac-

tion which would significantly affect the

quality of the human environment within the

meaning of Section 102(2) (c) of the

National Environmental Policy Act of 1969.

A-115

APPENDIX A

FONSI

ecember 12, 1986

0

Accordingly, the preparation of an

Environmental Impact Statement on the pro-

posed action is not required.

Supporting References

An Environmental Assessment, Texas

Bottomland Hardwood Preservation Program

Concept Plan and a Bottomland Hardwoods

Land Protection Plan have been prepared and

Summarize the environmental impacts and the

reason why a statement is not required.

These documents are on file at this office

and are available for public inspection

upon request.

(si Mul. Spear

Regional Director

A-116

APPENDIX A

FONSI

December 12, 1986

U.S. COURT OF APPEALS

FILED

MAR 4 1992

GILBERT F. GANUCHEAU

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

—————

—— ee

SABINE RIVER AUTHORITY,

Plaintiff-Appellant,

and

TEXAS WATER CONSERVATION ASSOCIATION,

plaintiff-Intervenor-Appellant,

versus

U. S$. DEPARTMENT OF INTERIOR,

et al., Defendants-Appellees,

and i

THE SIERRA CLUB and

THE NATIONAL AUDUBON, SOCIETY

pDefendants-Intervenors-Appellees

APPEAI, FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

TEXAS

A-117

APPENDIX A

Sth Circuit Court

March 4, 1992

QN PETITION FOR REHEARING

(March 4, 1992)

Before GOLDBERG, GARWOOD, Circuit Judges

and BUCHMEYER™ , District Judge.

PER CURIAM:

IT IS ORDERED that the petition for re-

hearing filed in the above entitled and

numbered cause be and the same is hereby

DENIED.

ENTERED FOR THE COURT: CLERK'S NOTE:

SEE FRAP AND LOCAL

RULES FOR STAY OF

Ls/_ Irving L. Goldberg THE MANDATE

United States Circuit Judge

District Judge for the Northern District of

Texas, sitting by designation.

A-118

APPENDIX A

Sth Circuit Court

March 4, 1992

i hare ee 5 oe eee

SS,

ind

i

~ RL:

Roath adi f 2 i

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

TEXAS WATER CONSERVATION ASSOCIATION,

Petitioner

and

SABINE RIVER AUTHORITY

Vv.

U.S. DEPARTMENT OF INTERIOR, ET AL.

and

THE SIERRA CLUB AND THE NATIONAL AUDUBON

SOCIETY, Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL J. BOOTH *

FRANK R. BOOTH

CAROLYN AHRENS

DAVIDSON, TROILO & BOOTH, P.C.

1900 First City Centre

816 Congress Avenue

Austin, Texas 78701

(512) 478-9506

Counsel for Petitioner

Texas Water Conservation Association

Appendix B- Statutes and Regulations

40

40

G

—

CFR

CFR

TABLE OF CONTENTS

.C. §460k

.C. §668dd

.C. §1254

CC. Bas 's

.C. §4331

.C. §4332

Part 1501

Part 1502

Part 1508

APPENDIX 8B

OTHER AUTHORITIES AND DOCUMENTATION

(1974)

(1985)

(Supp.

(1986)

(1986)

(1986)

B-1

Page

L9FA) anes eaencn B-22

oe 3 ee B-40

BRGGEDCS 2... 200% B-46

Excerpts........ B-49

40 CFR Part 1501 (1989)

NEPA Agency Rules

APPENDIX B

16 U.S.C. § 460k (1974)

NATIONAL CONSERVATION RECREATIONAL

AREAS

§ 460k. Public recreation use of fish and

wildlife conservation areas; com-

patibility with conservation pur-

poses; appropriate incidental or

secondary use; consistency with

other Federal operations and pri-

mary objectives of particular ar-

eas; curtailment; forms of

recreation not directly related to

primary purposes of individual ar-

eas; repeal or amendment of pro-

visions for particular areas.

In recognition of mounting public demands

for recreational opportunities on areas

within the National Wildlife Refuge System,

national fish hatcheries, and other conser-

vation areas administered by the Secretary

Appendix B

16 U.S.C. § 460k (1974)

National Recreational Areas

of the Interior for fish and wildlife pur-

poses; and in recognition also of the re-

sulting imperative need, if such recre-

ational opportunities are provided, to as-

Sure that any present or future recre-

ational use will be compatible with, and

will not prevent accomplishment of, the

primary purposes for which the said conser-

vation areas were acquired or established,

the Secretary of the Interior is autho-

rized, aS an appropriate incidental or sec-

ondary use, to administer such areas or

parts thereof for public recreation when in

his judgment public recreation can be an

appropriate incidental or secondary use:

Provided, That such public recreation use

shall be permitted only to the extent that

is practicable and not inconsistent with

other previously authorized Federal opera-

tions or with the primary objectives for

which each particular area is established:

B-2

Appendix B

16 U.S.C. § 460k (1974)

National Recreational Areas

Provided further, That in order to insure

accomplishment of such primary objectives,

the Secretary, after consideration of all

authorized uses, purposes, and other perti-

nent factors relating to individual areas,

shall curtail public recreation use gener-

ally or certain types of public recreation

use within individual areas or in portions

thereof whenever he considers such action

to be necessary: And provided further,

That none of the aforesaid refuges,

hatcheries, game ranges, and other conser-

vation areas shall be used during any fis-

cal year for those forms of recreation that

are not directly related to the primary

purposes and functions of the individual

areas until the Secretary shall have deter-

mined--

(a) that such recreational use will

not interfere with the primary purposes

for which the areas were established, and

B-3

Appendix B

§ 460k (1974)

a

1 co (~

+ J Pee ] =

National Recreational Areas

(b) that funds are available for the

development, operation, and maintenance

of these permitted forms of recreation.

This section shall not be construed to

repeal or amend a enactments re-

lating to particular areas.

(Pub.L. 87-714, § 1, Sept. 28, 1962, 76

Stat. 653; Pub.L. 89-669, § 9, Oct. 15,

1966, 80 Stat. 930.)

B-4

Appendix B

16 U.S.C. § 460k (1974)

National Recreational Areas

APPENDIX B

16 U.S.C. § 668dd (1985)

§ 668dd. National Wildlife Refuge

System

(a) Designation; administration; con-

tinuance of resources-management -pro-

grams for refuge lands in Alaska;

disposal of acquired lands; proceeds

(1) For the purpose of consolidating the

authorities relating to the various cate-

gories of areas that are administered by

the Secretary of the Interior for the con-

servation of fish and wildlife, including

species that are threatened with extinc-

tion, all lands, waters, and interests

therein administered by the Secretary as

wildlife refuges, areas for the protection

and conservation of fish and wildlife that

are threatened with extinction, wildlife

ranges, game ranges, wildlife management

areas, or waterfowl production areas are

Appendix B

§ 668dd (1985)

]

National Wildlife Refuge System

hereby designated as the "National Wildlife

Refuge System" (referred to herein as the

"System"), which shall be subject to the

provisions of this section, and shall be

administered by the Secretary through the

United States Fish and Wildlife Service.

With respect to refuge lands in the State

of Alaska, those programs relating to the

management of resources for which any other

agency of the Federal Government exercises

administrative responsibility through coop-

erative agreement shall remain in effect,

subject to the direct supervision of the

United States Fish and Wildlife Service, as

long as such agency agrees to exercise such

responsibility.

(2) No acquired lands which are or become

a part of the System may be transferred or

otherwise disposed of under any provision

of law (except by exchange pursuant to sub-

section (b) (3) of this section) unless-

B-6

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

determines with the approval of the

Migratory Bird Conservation Commission

that such lands are no longer needed for

the purposes for which the System was

established; and

(B) such lands are transferred or

otherwise disposed of for an amount not

less than--

(i) the acquisition costs of such

lands, in the case of lands of the

System which were purchased by the

United States with funds from the mi-

gratory bird conservation fund, or

fair market value, whichever iS

greater; or

(ii) the fair market value of such

lands (as determined by the Secretary

as of the date of the transfer or dis-

posal), in the case of lands of the

Appendix B

16 U.S.C. § 668dd (1985)

lational Wildlife Refuge System

System which were donated to the

system.

The Secretary shall pay into the migratory

bird conservation fund the aggregate amount

of the proceeds of any transfer or disposal

referred to in the preceding sentence.

(3) Each area which is included within

the System on January 1, 1975, or there-

after, and which was or is--

(A) designated as an area within

such System by law, Executive order, or

secretarial order; or

(B) so included by public land with-

drawal, donation, purchase, exchange, or

pursuant to a cooperative agreement with

any State or local government, any

Federal department or agency, or any

other governmental entity,

shall continue to be a part of the System

until otherwise specified by Act of

B-8

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

Congress, except that nothing in this para-

graph shall be construed as precluding-

(i) the transfer or disposal of ac-

quired lands within any such area pur-

Suant to paragraph (2) of this subsec-

tion;

(ji) the exchange of lands within

any such area pursuant to subsection (b)

(3) of this section; or

(iii) the disposal of any lands

within any such area pursuant to the

terms of any cooperative agreement re-

ferred to in subparagraph (B) of this

paragraph.

(b) Administration; public accommoda-

tions con-tracts; acceptance and use

of funds; exchange of properties;

cash equalization payments

In administering the System, the

Secretary is authorized--

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

(1) to enter into contracts with any

person or public or private agency

through negotiation for the provision of

public accommodations when, and in such

locations, and to the extent that the

Secretary determines will: not be incon-

Sistent with the primary purpose for

whichthe-affected area was established.

(2) to accept donations of funds and

to use such funds to acquire or manage

lands or interests therein, and

(3) to acquire lands or interests

therein by exchange (A) for acquired

lands or public lands, or for interests

in acquired or public lands, under his

jurisdiction which he finds to be suit-

able for disposition, or (B) for the

right to remove, in accordance with such

terms and conditions as he may prescribe,

products from the acquired or public

lands within the System. The values of

B-10

. Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

the properties so exchanged either shall

be approximately equal, or if they are

not approximately equal the values shall

be equalized by the payment of cash to

the grantor or to the Secretary as the

circumstances require.

(c) Prohibited and permitted activities;

application of mining and mineral

leasing laws, hunting or fishing reg-

ulations, and State laws or regula-

tions

No person shall knowingly disturb, in-

jure, cut, burn, remove, destroy, or pos-

sess any real or personal property of the

United States, including natural growth, in

any area of the System; or take or possess

any fish, bird, mammal, or other wild ver-

tebrate or invertebrate animals or part or

nest or egg thereof within any such area;

or enter, use, or otherwise occupy any such

area for any purpose; unless such activi-

B-11

Appendix B

16 U.S.C. § 668dd 1985)

National Wildlife Refuge System

J y

ties are performed by persons authorized to

manage such area, or unless such activities

are permitted either under subsection (d)

of this section or by express provision of

the law, proclamation, Executive order, or

public land order establishing the area, or

amendment thereof: Provided, That the

United States mining and mineral leasing

laws shall continue to apply to any lands

within the System to the same extent they

apply prior to October 15, 1966, unless

subsequently withdrawn under other author-

ity of law. With the exception of endan-

gered species and threatened species listed

by the Secretary pursuant to section 1533

of this title in States wherein a coopera-

tive agreement does not exist pursuant to

section 1535(c) of this title, nothing in

this Act shall be construed to authorize

the Secretary to control or regulate hunt-

ing or fishing of resident fish and

B-12

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

wildlife on lands not within the system.

The regulations permitting hunting and

fishing of resident fish and wildlife

within the System shall be, to the extent

practicable, consistent with State fish and

wildlife laws and regulations. The provi-

sions of this Act shall not be construed as

affecting the authority, jurisdiction, or

responsibility of the several States to

Manage, control, or regulate fish and resi-

dent wildlife under State law or regula-

tions in any area within the System.

(ad) Use of areas; administration of mi-

gratory bird sanctuaries as game tak-

ing areas; rights of way, easements,

and reservations; payment of fair

market value

(1) The Secretary is authorized, under

such regulations as he may prescribe, to--

(A) permit the use of any area

within the System for any purpose, in-

B-13

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

Cluding but not limited to hunting, fish-

ing, public recreation and accommoda-

tions, and access whenever he determines

that such uses are compatible with the

major purposes for which such areas were

established: Provided, That not to ex-

ceed 40 per centum at any one time of any

area that has been, or hereafter may be

acquired, reserved, or set apart as an

inviolate sanctuary for migratory birds,

under any law, proclamation, Executive

order, or public land order may be admin-

istered by the Secretary as an area

within which the taking of migratory game

birds may be permitted under such regula-

tions as he may prescribe unless the

secretary finds that the taking of any

species of migratory game birds in more

than 40 percent of such area would be

beneficial to the species; and

B-14

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

"a

(B) permit the use of, or grant

easements in, over, across, upon,

through, or under any areas within the

System for purposes such as but not nec-

essarily limited to, powerlines, tele-

phone lines, canals, ditches, pipelines,

and roads, including the construction,

operation, and maintenance thereof, when-

ever he determines that such uses are

compatible with the purposes for which

these areas are established.

(2) Notwithstanding any other provision

of law, the Secretary of the Interior may

not grant to any Federal, State, or local

agency or to any private individual or or-

ganization any right-of-way, easement, or

reservation in, over, across, through, or

under any area within the system in connec-

tion with any use permitted by him under

paragraph (1) (B) of this subsection unless

the grantee pays to the Secretary, at the

B-15

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

option of the Secretary, either (A) in lump

sum the fair market value (determined by

the Secretary as of the date of conveyance

to the grantee) of the right-of-way, ease-

ment, or reservation; or (B) annually in

advance the fair market rental value

(determined by the Secretary) of the right-

of-way, easement, or reservation. If any

Federal, State, or local agency is exempted

from such payment by any other provision of

Federal law, such agency shall otherwise

compensate the Secretary by any other means

agreeable to the Secretary, including, but

not limited to, making other land available

or the loan of equipment or personnel; ex-

cept that (A) any such compensation shall

relate to, and be consistent with, the ob-

jectives of the National Wildlife Refuge

System, and (B) the Secretary may waive

such requirement for compensation if he

finds such requirement impracticable or un-

B-16

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

a.

necessary. All sums received by the

Secretary of the Interior pursuant to this

paragraph shall, after payment of any nec-

essary expenses incurred by him in adminis-

tering this paragraph, be deposited into

the Migratory Bird Conservation Fund and

shail be available to carry out the provi-

sions for land acquisition of the Migratory

Bird Conservation Act (16 U.S.C. 715 et

seq.) and the Migratory Bird Hunting Stamp

Act (16 U.S.C. 718 et seq.).

(e) Penalties

Any person who violates or fails to com-

ply with any of the provisions of this Act

or any regulations issued thereunder shall

be fined under Title 18, or imprisoned for

not more than 1 year, or both.

(f) Enforcement of provisions; arrest,

searches, and seizures; custody of

property; forfeitures; disposition

B-17

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

Any person authorized by the Secretary of

the Interior to enforce the provisions of

this Act or any regulations issued thereun-

der, may, without a warrant, arrest any

person violating this Act or regulations in

his presence or view, and may execute any

warrant or other process issued by an offi-

cer or court of competent jurisdiction to

enforce the provisions of this Act or regu-

lations, and may with a search warrant

search for and seize any property, fish,

bird, mammal, or other wild vertebrate or

invertebrate animals or part or nest or egg

thereof, taken or possessed in violation of

this Act or the regulations issued thereun-

der. Any property, fish, bird, mammal, or

other wild vertebrate or invertebrate ani-

mals or part or egg thereof seized with or

without a search warrant shall be held by

such person or by a United States marshal,

and upon conviction, shall be forfeited to

B-18

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

mn

—

oy

itis

the United States and disposed of by the

Secretary, in accordance with law. The

Director of the United States Fish and

Wildlife Service is authorized to utilize

by agreement, with or without reimburse-

ment, the personnel and services of any

other Federal or State agency for purposes

of enhancing the enforcement of this Act.

(g) Regulations; continuation, modifi-

cation, or rescission

Regulations applicable to areas of the

System that are in effect on October 15,

1966, shall continue in effect until modi-

fied or rescinded.

(h) National conservation recreational

area provisions; amendment, repeal,

or modification

Nothing in this section shall be con-

strued to amend, repeal, or otherwise mod-

ify the provision of the Act of September

28, 1962 (76 Stat. 653; 16 U.S.C. 460k-

B-19

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

460k-4) which authorizes the Secretary of

the Interior to administer the areas within

the System for public recreation. The pro-

visions of this section relating to recre-

ation shall be administered in accordance

with the provisions of said sections.

(1) Exemption from State water laws

Nothing in this Act shall constitute an

express or implied claim or denial on the

part of the Federal Government as to exemp-

tion from State water laws.

(Pub.L. 89-669, § 4, Oct. 15, 1966, 80

Stat. 927; Pub.L. 90-404, § 1, July 18,

1968, 82 Stat. 359; Pub.L. 93-205, §

13(a), Dec. 28, 1973, 87 Stat. 902; Pub.L.

93-509, § 2, Dec. 3, 1974, 88 Stat. 1603;

Pub.L. 94-215, § 5, Feb. 17, 1976, 90 Stat. —

190; Pub.L. 94-223, Feb. 27, 1976, 90

Stat. 199; Pub.L. 95- 616, §§ 3(f), 6,

Nov. 8, 1978, 92 Stat. 3111, 3114.) (As

amended Pub.L. 100-226, § 4, Dec. 31, 1987,

B-20

Appendix B

16 U.S.C. § 668dd (1985)

National Wildlife Refuge System

101 Stat. 1551; Pub.L. 100- 653, Title IX,

§ 904, Nov. 14, 1988, 102 Stat. 3834.)

Appendix B

16 U.S.C. § 668dd (1985)

Wildlife Refuge System

ee

APPENDIX B

28 U.S.C. § 1254 (Supp. 1992)

§ 1254. Courts of appeals;

certiorari; appeal; certified

questions

Courts of appeals;

certiorari; appeal; certified

questions

Cases in the courts of appeals may be re-

viewed by the Supreme Court by the follow-

ing methods:

(1) By writ of certiorari granted

upon the petition of any party to any

Civil or criminal case, before or after

rendition of judgment or decree;

(2) By certification at any time

by a court of appeals of any question of

law in any civil or criminal case as to

which instructions are desired, and upon

such certification the Supreme Court may

give binding instructions or require the

B-22

Appendix B

28 U.S.C. § 1254 (Supp. 1992)

Courts of Appeals; Certiorari

, - |

\

3

}

entire record to be sent up for decision

of the entire matter in controversy.

(As amended June 27, 1988, Pub.L. 100-352,

§ 2(a), (b), 102 Stat. 662.)

Appendix B

Cc. § 1254 (Supp. 1992)

of Appeals;

1)

‘ co

J2

Certiorari

APPENDIX B

33 U.S.C. § 1371 (1976)

§ 1371. Authority under other laws and

regulations

(a) Impairment of authority or functions

of officials and agencies; treaty

provisions

This chapter shall not be construed as

(1) limiting the authority or functions of

any officer or agency of the United States

under any other law or regulation not in-

consistent with this chapter; (2) affect-

ing or impairing the authority of the

Secretary of the Army (A) to maintain navi-

gation or (B) under the Act of March 3,

1899 (30 Stat. 1112); except that any per-

mit issued under section 1344 of this title

shall be conclusive as to the effect on wa-

ter quality of any discharge resulting from

any activity subject to section 403 of this

title, or (3) affecting or impairing the

B-24

Appendix B

33 U.S.C. § 1371 (1976)

Authority Under Other Laws

Daan ieaeecaa etait aiaiaiiiiaa imei

provisions of any treaty of the United

States.

(b) Discharges of pollutants into navi-

gable waters

Discharges of pollutants into the naviga-

ble waters subject to the Rivers and

Harbors Act of 1910 (36 Stat. 593; 33

U.$.C. 421) and the Supervisory Harbors Act

of 1888 (25 Stat. 209; 33 U.S.C. 441-451b)

shall be regulated pursuant to this chap-

ter, and not subject to such Act of 1910

and the Act of 1888 except as to effect on

navigation and anchorage.

(c) Action of Administrator deemed major

Federal action; construction of

National Environmental Policy Act of

1969

(1) Except for the provision of Federal

financial assistance for the purpose of as-

sisting the construction of publicly owned

treatment works as authorized by section

B-25

Appendix B

33 U.S.C. § 1371 (1976)

Authority Under Other Laws

1281 of this title, and the issuance of a

permit under section 1342 of this title for

the discharge of any pollutant by a new

source as defined in section 1316 of this

title, no action of the Administrator taken

pursuant to this chapter shall be deemed a

major Federal action significantly affect-

ing the quality of the human environment

within the meaning of the National

Environmental Policy Act of 1969 (83 Stat.

852) [42 U.S.C.A. s 4321 et seq.]; and

(2) Nothing in the National Environmental

Policy Act of 1969 (83 Stat. 852) shall be

deemed to--

(A) authorize any Federal agency au-

thorized to license or permit the conduct

of any activity which may result in the

discharge of a pollutant into the naviga-

ble waters to review any effluent limita-

tion or other requirement established

pursuant to this chapter or the adequacy

B-26

Appendix B

33 U.S.C. § 1371 (1976)

Authority Under Other Laws

iat aaeatacini iat ideale

ee

of any certification under section 1341

of this title; or

(B) authorize any such agency to im-

pose, as a condition precedent to the is-

Suance of any license or permit, any ef-

fluent limitation other than any such

limitation established pursuant to this

chapter.

(d) Consideration of international water

pollution control agreements

Notwithstanding this chapter or any other

provision of law, the Administrator (1)

shall not require any State to consider in

the development of the ranking in order of

priority of needs for the construction of

treatment works (as defined in subchapter

Il of this chapter), any water pollution

control agreement which may have been en-

tered into between the United States and

. , 3 2) =] +. ~ Je

any other nation, and 2 shall not con

B-2

2 rr °

Appendix B

J.S § 1371 (1976

Authorit nder Other Laws

sider any such agreement in the approval of

any such priority ranking.

(June 30, 1948, c. 758, Title V, s 5ll, as

added Oct. 18, 1972, Pub.L. 92- 500, s 2,

86 Stat. 893, and amended Jan. 2, 1974,

Pub.L. 93-243, s 3, 87 Stat. 1069.)

B-28

Appendix B

33 U.8.0.°8 2874. (2976)

Authority Under Other Laws

eee _as™™

APPENDIA B

42 u.S.C. § 4331 (1977)

gs 4331. Congressional declaration of

) national environmental policy

Creation and maintenance of

conditions under which man and

nature cen exist in productive

harmony

(a) The Congress, recognizing the p

found impact of man's activity on the inter-

hater

’ | ry ~ . Qo rn + - 1} ]

relations of all components OF the natural

5

@m

'T)

ry

O

rh

5

y

$

Tt

\

environment, particularly he

ences of population growtn, high-density ur

banization, industrial expansion,

as AD er Me hit Awe ia ahh ANG AI RTARE SN Ae SD

exploitation, and new and expanding techno-

logical advances and recognizing further tne

nn

critical importance of restoring and main-

taining environmental quality to the overall

ye toalecan hey: at BH

welfare and development of man, declares that

ale han te ite AE itt TIN

~~aF nal - a | os ~_ ~~ - ih on -o aA ——

JV ver mene, rs >OOpe A ae 4 ee WLLL > ~~) ~acle aiiQ be

~~ = = da r rnrmn ohana = hae eel ~r- Fy - earn or - - ~

cal governments Ana ~ bLeee “oncerneca puLli+r

$

3

=

i 2.29

é o ajo

P| Anpena a

2 Lopendaix )

% ~—-

4

lll

and private organizations, to use all practi-

cable means and measures, including financial

and technical assistance, in a manner calcu-

lated to foster and promote the general wel-

fare, to create and maintain conditions under

which man and nature can exist in productive

harmony, and fulfill the social, economic,

and other requirements of present and future

generations of Americans.

Continuing responsibility of Federal

Government to use all practicable means

to improve and coordinate Federal

plans, functions, programs, and re-

sources

(b) In order to carry out the policy set

forth in this chapter, it is the continuing

responsibility of the Federal Government to

use all practicable means, consistent with

other essential considerations of national

policy, to improve and coordinate Federal

B-30

Appendix B

42 U.S.C. § 4331 (1977)

NEPA - Agency Creation

plans, functions, programs, and resources to

| the end that the Nation may-~-

(1) fulfill the responsibilities of

each generation as trustee of the environ-

ment for succeeding generations;

(2) assure for all Americans safe,

healthful, productive, and esthetically

and culturally pleasing surroundings;

(3) attain the widest range of benefi-

cial uses of the environment without

degradation, risk to health or safety, Or

other undesirable and unintended conse-

quences;

(4) preserve important historic, cul-

tural, and natural aspects of our national

heritage, and maintain, wherever possible,

an environment which supports diversity

and variety of individual choice;

(S) achieve a balance between popula-

tion and resource use which will permit

Ww

|

oe)

te

Appendix B

42 U.S.C. § 4331 (1977)

NEPA - Agency Creation

high standards of living and a wide shar-

ing of life's amenities; and

(6) enhance the quality of renewable

resources and approach the maximum attain-

able recycling of depletable resources.

Responsibility of each person

to contribute to preservation

and enhancement of environment

(c) The Congress recognizes that each

person should enjoy a healthful environment

and that each person has a responsibility to

contribute to the preservation and enhance-

ment of the environment.

(Pub.L. 91-190, Title I, § 101, Jan. 1, 1970,

83 Stat. 852.)

B-32

Appendix B

42 U.S.C. § 4331 (1977)

NEPA - Agency Creation

‘ .

:

‘

j

0 hate tel

APPENDIX B

4ZU.S.C. § 4332 (1977)

§ 4332. Cooperation of agencies;

reports; availability of

information; recommendations;

international and national

coordination of efforts

The Congress authorizes and directs that,

to the fullest extent possible: (1) the

policies, regulations, and public laws of

oC

the United States shall be interpreted and

cies set forth in this chapter, and (2) all

agencies of the Federal Government shall--

(A) utilize a systematic, interdisci-

plinary approach which will insure the

integrated use of the natural and social

sciences and the environmental design

arts in planning and in decisionmaking

which may Nave an impact on man's envi-

ronment;

( \ mel + Fx na Sortralr _ rhanna nr

B) 7. enciry anda IeV — ID mectnoas ana

an te call an a ol | all anh an i ond l & ~ 7 a an! - KR

procedures, in Insultati Vi -he

R

ppendix B

22 ? yA |

Council on Environmental Quality estab-

lished by subchapter II of this chapter,

which will insure that presently unquan-

tified environmental amenities and values

may be given appropriate consideration in

decisionmaking along with economic and

technical considerations;

(C) include in every recommendation

Or report on proposals for legislation

and other major Federal actions signifi-

cantly affecting the quality of the human

environment, a detailed statement by the

responsible official on-

(i) the environmental impact of the

proposed action,

(ii) any adverse environmental ef-

fects which cannot be avoided should

the proposal be imptemented,

(iii) alternatives to the proposed

action,

B-34

Appendix B

42 U.S.C. § €2322. (4977)

Cooperation of Agencies

(iv) the relationship between local

short-term uses of man's environment

and the maintenance and enhancement of

long-term productivity, and

(v) any irreversible and irretriev-

able commitments of resources which

would be involved in the proposed ac-

tion should it be implemented.

Prior to making any detailed state-

ment, the responsible Federal official

Shall consult with and obtain the com-

ments of any Federal agency which has

jurisdiction by law or special expertise

with respect to any environmental impact

involved. Copies of such statement and

the comments and views of the appropriate

Federal, State and local agencies, which

are authorized to develop and enforce en-

vironmental standards, shall be made

available to the President, the Council

on Environmental Quality and to the pub-

B-35

Appendix B

42 U.S.C. § 4332 (1977)

cooperation of Agencies

lic as provided by section 552 of Title

5, and shall accompany the proposal

through the existing agency review pro-

cesses;

(D) Any detailed statement required

under subparagraph (C) after January l,

1970, for any major Federal action funded

under a program of grants to States shall

not be deemed to be legally insufficient

solely by reasons of having been prepared

by a State agency or official, if:

(1) the State agency of official

has statewide jurisdiction and has the

responsibility for such action,

(ii) the responsible Federal offi-

cial furnishes guidance and partici-

pates in such preparation,

(iii) the responsible Federal offi-

cial independently evaluates such

statement prior to its approval and

adoption, and

B-36

Appendix B

42 U.S.C. § 4332 (1977)

Cooperation of Agencies

a eae iieaiiaiieiiiiiaiins

(iv) after January l, 1976, the re-

sponsible Federal official provides

early notification to, and solicits

the views of, any other state or any

Federal land management entity of any

action or any alternative thereto

which may have significant impacts

upon such State or affected Federal

land management entity and, if there

is any disagreement on such impacts,

prepares a written assessment of such

impacts and views for incorporation

into such detailed statement.

The procedures in this subparagraph shall

not relieve the Federal official of his

responsibilities for the scope, objectiv-

ity, and content of the entire statement

or of any other responsibility under this

chapter; and further, this subparagraph

joes not affect the legal sufficiency of

statements prepared by State agencies

with less than statewide jurisdiction.!

(E) study, develop, and describe ap-

propriate alternatives to recommended

courses of action in any proposal which

involves unresolved conflicts concerning

alternative uses of available resources;

(F) recognize the worldwide and long-

range character of environmental problems

and, where consistent with the foreign

policy of the United States, lend appro-

priate support to initiatives, resolu-

tions, and programs designed to maximize

international cooperation in anticipating

and preventing a decline in the quality

of mankind's world environment;

(G) make available to States, coun-

ties, municipalities, institutions, and

individuals, advice and information use-

'So in original.

B-38

Appendix B

42 U.S.C. § 4332° (1977) |

Cooperation of Agencies

ful in restoring, maintaining, and en-

hancing the quality of the environment;

(H) initiate and utilize ecological

information in the planning and develop-

ment of resource-oriented projects; and

(I) assist the Council on

Environmental Quality established by sub-

chapter II of this chapter.

Pub.L. 91-190, Title I, § 102, Jan. l,

1970, 83 State. 853; Pub.L. 94-83, Aug. 9,

1975, 89 Stat. 424.

Appendix B

42 U.S.C. § 4332 (1977)

Sooperation of Agencies

APPENDIX B

EXCERPTS FROM

40 C.F.R. Part 1501 (1986)

PART 1501:--NEPA AND AGENCY PLANNING

AUTHORITY: NEPA, the Environmental. Quality

Improvement Act of 1970, as amended (42

U.S.C. 4371 et seqg.), sec. 309 of the Clean

Air Act, as amended (42 U.S.C. 7609, and

E.O. 11514 (Mar. 5, 1970, as amended by

E.O. 11991, May 24, 1977).

SouRcE: 43 FR 55992, Nov. 29, 1978, un-

less otherwise noted.

a a

§ 1501.2 Apply NEPA early in the pro-

cess.

Agencies shall integrate the NEPA process

with other planning at the earliest possi-

ble time to insure that planning and deci-

Sions reflect environmental values, to

avoid delays later in the process, and to

B-40

Appendix B

Excerpts from

40 C.F.R. Part 1501 (1986)

NEPA and Agency Planning

head off potential conflicts. Each agency

shall:

(a) Comply with the mandate of section

102(2) (A) to “utilize a systematic, inter-

disciplinary approach which will insure the

integrated use of the natural and social

sciences and the environmental design arts

in planning and in decisionmaking which may

have an impact on man's environment," as

specified by § 1507.2.

(b) Identify environmental effects and

values in adequate detail so they can be

compared to economic and technical analy-

ses. Environmental documents and appropri-

ate analyses shall be circulated and re-

viewed at the same time as other planning

documents.

(c) Study, develop, and describe appro-

priate alternatives to recommended courses

of action in any proposal which involves

B-41

Appendix B

Excerpts from

F.R. Part 1501 (1986)

Af)

a an

NEPA and Agency Planning

unresolved conflicts concerning alternative

uses of available resources as provided by

section 102(2)(E) of the Act.

(d) Provide for cases where actions are

planned by private applicants or other non-

Federal entities before Federal involvement

so that:

(1) Policies or designated staff are

available to advise potential applicants of

Studies or other information foreseeably

required for later Federal action.

(2) The Federal agency consults early

with appropriate State and local agencies

and Indian tribes and with interested pri-

vate persons and organizations when its own

involvement is reasonably foreseeable.

(3) The Federal agency commences its NEPA

process at the earliest possible time.

. 2. 2-

B-42

Appendix B

Excerpts from

40 C.F.R. Part 1501 (1986)

NEPA and Agency Planning

ren A i LE RG PRR

§ 1501.6 Cooperating agencies.

The purpose of this section is to empha-

size agency cooperation early in the NEPA

process. Upon request of the lead agency,

any other Federal agency which has juris-

diction by law shall be a cooperating

agency. In addition to any other Federal

agency which has special expertise with re-

spect to any environmental issue, which

should be addressed in the statement may be

a cooperating agency upon request of the

lead agency. An agency may request the

lead agency to designate it a cooperating

agency.

(a) The lead agency shall:

(1) Request the participation of each co-

operating agency in the NEPA process at the

earliest possible time.

(2) Use the environmental analysis and

proposals of cooperating agencies with

B-43

Appendix B

Excerpts from

40 C.F.R. Part 1501 (1986)

NEPA and Agency Planning

jurisdiction by law or special expertise,

to the maximum extent possible consistent

with its responsibility as lead agency.

(3) Meet with a cooperating agency at the

latter's request.

(b) Each cooperating agency shall:

(1) Participate in the NEPA process at

the earliest possible time.

(2) Participate in the scoping process

(described below in § 1501.7).

(3) Assume on request of the lead agency

responsibility for developing information

and preparing environmental analyses in-

cluding portions of the environmental im-

pact statement concerning which the cooper-

ating agency has special expertise.

(4) Make available staff support at the

lead agency's request to enhance the lat-

ter's interdisciplinary capability.

B-44

Appendix B

Excerpts from

40 C.F.R. Part 1501 (1986)

NEPA and Agency Planning

(5S) Normally use its own funds. The lead

agency shall, to the extent available funds

permit, fund those major activities or

analyses it requests from cooperating agen-

cies. Potential lead agencies shall in-

cluding such funding requirements in their

budget requests.

(c) A cooperating agency may in response

to a lead agency's request for assistance

in preparing the environmental impact

Statement (described in paragraph (b) (3),

(4), or (5) of this section) reply that

other program commitments preclude any in-

volvement or the degree of involvement re-

quested in the action that is the subject

of the environmental impact statement. A

copy of this reply shall be submitted to

the Council.

B-45

Appendix B

Excerpts from

40 C.F.R. Part 1501 (1986)

NEPA and Agency Planning

APPENDIX B

EXCERPTS FROM

40 CFR Part 1502 (1986)

PART 1502:--ENVIRONMENTAL IMPACT

STATEMENT

AUTHORITY: NEPA, the Environmental

Quality Improve-ment Act of 1970, as

amended (42 U.S.C. 4371 et seq.), sec. 309

of the Clean Air Act, as amended (42 U.S.C.

7609), and E.O. 11514 (Mar. 5, 1970, as

amended by E.O. 11991, May 24, 1977).

SOURCE: 43 FR 55994, Nov. 29, 1978, un-

less otherwise noted.

* ek ek t

§ 1502.5 Timing.

An agency shall commence preparation of

an environmental impact statement as close

as possible to the time the agency is de-

veloping or is presented with a proposal

(§ 1508.23) so that preparation can be com-

pleted in time for the final statement to

B-46

Appendix B

Excerpts from

40 CFR Part 1502 (1986)

NEPA: Environmental Impact Statement

ee

Pt

:

be included in any recommendation or report

on the proposal. The statement shall be

prepared early enough so that it can serve

practically as an important contribution to

the decisionmaking process and will not be

used to rationalize or justify decisions

already made (§§ 1500.2(c), 1501.2, and

1502.2). For instance:

(a) For projects directly undertaken by

Federal agencies the environmental impact

statement shall be prepared at the feasi-

bility analysis (go-no go) stage and may be

supplemented at a later stage if necessary.

(b) For applications to the agency ap-

propriate environmental assessments or

statements shall be commenced no later than

immediately after the application is re~

ceived. Federal agencies are encourage to

begin preparation of such assessments or

Appendix B

Excerpts from

40 CFR Part 1502 (1986)

NEPA: Environmental Impact Statement

Statements earlier, preferably jointly with

applicable State or local agencies.

(c) For adjudication, the final environ-

mental impact statement shall normally pre-

cede the final staff recommendation and

that portion of the public hearing related

to the impact study. In appropriate cir-

cumstances the statement may follow prelim-

inary hearings designed to gather informa-

tion for use in the statements.

(d) For informal rulemaking the draft

environmental impact statement shall nor-

mally accompany the proposed rule.

Appendix B

Excerpts from

40 CFR Part 1502° (1986)

NEPA: Environmental Impact Statement

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eidseta red

APPENDIX B

EXCERPTS FROM

40 C.F.R. Part 1508 (1986)

PART 1508:--TERMINOLOGY AND INDEX

AUTHORITY: NEPA, the Environmental

Quality Improvement Act of 1970, as amended

(42 U.S.C. 4371 et seq.), sec. 309 of the

Clean Air Act, as amended (42 U.S.C. 7609),

and E.O. 11514 (Mar. 5, 1970, as amended

by E.O. 11991, May 24, 1977).

SoURCE: 43 FR 56003, Nov. 29, 1978, un-

less otherwise noted.

hk kw

gs 1508.5 Cooperating agency.

"Cooperating agency” means any Federal

agency other than a lead agency which has

jurisdiction by law or special expertise

with respect to any environmental impact.

involved in a proposal (or a reasonable al-

ternative) for legislation or other major

Federal action significantly affecting the

B-49

Appendix B

Excerpts from

40 C.F.R. Part 1508 (1986)

Terminology and Index

quality of the human environment. The se-

lection and responsibilities of a cooperat-

ing agency are described in § 1501.6. A

State or local agency of similar qualifica-

tions or, when the effects are on a reser-

vation, an Indian Tribe, may by agreement

with the lead agency become a cooperating

agency.

ee &

§ 1508.7 Cumulative impact.

“Cumulative impact" is the impact on the

environment which results from the incre-

mental impact of the action when added to

other past, present, and reasonably fore-

seeable future actions regardless of what

agency (Federal or non-Federal) or person

undertakes such other actions. Cumulative

impacts can result from individually minor

but collectively significant actions taking

place over a period of time.

B-50

Appendix B

Excerpts from

40 C.F.R. Part 1508 (1986)

Terminology and Index

Te ET ee

§ 1508.8 Effects.

"Effects" include:

(a) Direct effects, which are caused by

the action and occur at the same time and

place.

(b) Indirect effects, which are caused

by the action and are later in time or far-

ther removed in distance, but are still

reasonably foreseeable. Indirect effects

may include growth inducing effects and

other effects related to induced changes in

the pattern of land use, population density

or growth rate, and related effects on air

and water and other natural systems, in-

cluding ecosystems.

Effects and impacts as used in these regu-

lations are synonymous. Effects includes

ecological (such as the effects on natural

resources and on the components, struc-

B-51

Appendix B

Excerpts from

40 C.F.R. Part 1508 (1986)

Terminology and Index

tures, and functioning of affected ecosys-

tems), aesthetic, historic, cultural, eco-

nomic, social, or health, whether direct,

indirect, or cumulative. Effects may also

include those resulting from actions which

may have both beneficial and detrimental

effects, even if on balance the agency be-

lievés that the effect will be beneficial.

tk & &

§ 4508.14 Human environment.

“Human environment" shall be interpreted

comprehensively to include the natural and

physical environment and the relationship

of people with that environment. _ (See the

definition of “effects" (§ 1508.8).) This

means that economic or social effects are

rot imttended by themselves to require

preparation of an environmental impact

statements . When an environmental impact

statement is prepared and economic or so-

B-52

Appendix B

Excerpts from

40 C.F.R. Part 1508 (1986)

Terminology and Index

cial and natural or physical environmental

effects are interrelated, then the environ-

mental impact statement will discuss all of

these effects on the human environment.

a

§ 1508.18 Major Federal action.

"Major Federal action" includes actions

with effects that may be major and which

are potentially subject to Federal control

and responsibility. Major reinforces but

does not have a meaning independent of sig-

nificantly (§ 1508.27). Actions include

the circumstance where the responsible of-

ficials fail to act and that failure to act

is reviewable by courts or administrative

tribunals under the Administrative

Procedure Act or other applicable law as

acency action.

(a) Actions include new and continuing

activities, including projects and programs

B-53

Appendix B

Excerpts from

40 C.F.R. Part 1508 (1986)

Terminology and Index

entirely, or partly financed, assisted, con-

@ucted, regulated, or approved by federal

agencies; new or revised agency rules,

regulations, plans, policies, or proce-

dures; and legislative proposals (§§

1506.8, 1508.17). Actions do not include

funding assistance solely in the form of

general revenue sharing funds, distributed

under the State and Local Fiscal Assistance

Act of 1972, 31 U.S.C. 1221 et seg., with

no Federal agency control over the subse-

quent use of such funds. Actions do not

include bringing judicial or administrative

Civil or criminal enforcement actions.

(b) Federal actions tend to fall within

one of the following catagories:

(1) Adoption of official policy, such as

rules, regulations, and interpretations

adopted pursuant to the Administrative

Procedure Act, 5 U.S.C. 551 -°et seq.;

B-54

Appendix B

Excerpts from

40 C.F.R. Part 1508 (1986)

Terminology and Index

treaties and international conventions or

agreements; formal documents establishing

an agency's policies which will result in

or substantially alter agency programs.

(2) Adoption of formal plans, such as

official documents prepared or approved by

federal agencies which guide or prescribe

alternative uses of Federal resources, upon

which future agency actions will be based.

(3) Adoption of program

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