# Petition for Writ of Certiorari — Texas Water Conservation Ass'n v. Department of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0749%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 823 ## Text D Aye 4:9 SQ i) [ mpnne cour, mm FILED IN THE JUN 2 1992 Supreme Court of the United Statma of tHe cers OCTOBER TERM, 1991 SABINE RIVER AUTHORITY, ef al. Pe tations rs, VV. UNITED STATES DEPARTMENT OF INTERIOR. et al. Resvondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit PETITION FOR A WRIT OF CERTIORARI WILLEAM H. BURCHETTE* CHRISTINE C. RYAN VINCENT P. DUANE JORDEN SCHULTE & BURCHETTE 1025 Thomas Jefferson Street, N.W. Suite 400 East Washington, D.C. 20007 (202) 965-8100 EARL ROBERTS ROBERTS, HILL & CALK 2020 Bill Owens Parkway Suite 200 Longwiew, Texas 75604 (903) 759-2020 Attormeys for Petitioner Sabine River Authority “Counsel of Record June 2, 1992 BEST AVAILABLE COPY QUESTION PRESENTED Whether the taking by a federal agency of a con- servation easement that forecloses in perpetuity the use of land for any purpose inconsistent with its terms, but which nevertheless may have a significant adverse effect on the quality of the human environ- ment, is a federal action exempt from the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”’), simply because it preserves the existing physical characteristics of the land. 2 PARTIES IN THE COURT BELOW Petitioner is the Sabine River Authority (‘‘Petitioner’ or the ‘“‘Authority’’), an instrumentality of the State of Texas charged by the Texas legislature with responsibility, inter alia, for water supply and conservation. Respondents are the United States De- partment of Interior and the United States Fish and Wildlife Service (the ‘‘FWS’’). In addition, the follow- ing parties intervened in the proceedings before the district court: Texas Water Conservation Association (‘“‘TWCA’’), which intervened to support Petitioner’s argument regarding the need for an Environmental Impact Statement (‘‘EIS’’) to cover the easement ac- quisition in this case and to argue its interests in having FWS prepare a programmatic EIS for its Texas Bottomland Hardwoods Preservation Program; and the Sierra Club and the National Audubon Society each of which intervened to support FWS’s Finding of No Significant Impact (‘FONSI’) in connection with the easement acquisition challenged here. il TABLE OF CONTENTS REASONS FOR GRANTING THE PETITION .......... 3 IT. ITI. IV. SRM MOPPLS RIMES ssssnassccssenscisesncesnnsersonceessecasse., THE ELEVATION OF PRESERVATION IN- TERESTS TO THE EXCLUSION OF WATER SUPPLY (AND OTHER) ENVIRONMENTAL INTERESTS VIOLATES THE “OUTCOME NEUTRAL” ANALYSIS REQUIRED BY METHOW VALLEY ...........ccccccccccssoscssesseeees ss, THE DECISION BELOW WILL EXCLUDE FROM NEPA ACTIONS THAT ADVERSELY AFFECT THE QUALITY AND SUPPLY OF MINIT Wiiracahenihssainnhndnnadensarewedcadaporionasecakeancssc.. THE DECISION BELOW MISAPPLIED MET- ROPOLITAN EDISON TO EXCLUDE FROM NEPA FEDERAL ACTIONS WHICH PRE. SERVE THE PHYSICAL ENVIRONMENT ..... A. Metropolitan Edison Does Not Turn On The Causal Relationship Between The Federal Action And A “Change In The Physical Environment.” .......................... o>) 13 B. Metropolitan Edison Does Not Exclude From NEPA Risks Of Environmental DIE ccicscsskcndannvensesnntecsandenencscassesntaceneretss 1g COUINCLIUGIUIN scnccvccssnsccsccsccscoscssenscencesonsens svaiaeeenanens on TABLE OF AUTHORITIES CASES: Aberdeen & R. R. Co. v. Students Challenging Reg- ulatory Agency Procedures (SCRAP), 422 U.S. Be SR VOD siienisanesinscaptmadieneunubisshinaeniembaceuaices American Horse Protection Assoc. v. Andrus, 608 ef Bite. Be we... ees e een Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87 (1983) ou... Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir. 1988), cert. denied, 489 U.S. 1066 ERIE ~wauccdausneubataoeubals neues sae knieiameaamanionaion City of New York v. United States Dept. of Transp., 715 F.2d 732 (2d Cir. 1983); cert denied, 465 CFa RN EIU sucesuskacalecduesscmenbecencunaraaanaieinn Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989) ......... Conservation Law Foundation v. General Services Admin., 707 F.2d 626 (1st Cir. 1983) ............ Colorado River Water Conservation Dist. v. United Semben, GEG UB. BOO COTS) ccvccscicoccnececssnancesess Defenders of Wildlife v. Andrus, 627 F.2d 1238 RPA Reals. “UMUD nicissnnatiicdinsisnecancan banged Environmental Defense Fund v. Andrus, 596 F.2d Oe COU SE. DIIGO sasisickccssaseincksceaseienanss Jones v. Gordon, 621 F. Supp. 7 (D.° Alaska 1985), affd in part and rev'd in part, 792 F.2d 821 GUE ane POE vincudsnsccrentisatnnasessnnnieatae red asate. La Flamme v. Federal Energy Regulatory Com., $52 F.2d 389 (9th Cir. 1988) ............cccccccesseese Lockhart v. Kenops, 927 F.2d 1028 (8th Cir. 1991), cert. denied, __. U.S. __., 112 S.Ct. 186 COUPEE Petitioner-Intervenor, Texas Water Conservation As- sociation (““TWCA’’), filed a timely petition to the court of appeals for a panel rehearing. That petition was denied by the court of appeals by order dated March 4, 1992, reproduced in Appendix C, infra. Pur- suant to Sup. Ct. Rule 13, the time for filing this petition for writ of certiorari runs to and including June 2, 1992. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTE INVOLVED Sections 2, 101 and 102 of the National Environ- mental Policy Act of 1969, 42 U.S.C. 4821, 4331 and 4332, reproduced in Appendix D, infra. STATEMENT OF THE CASE Fortunately, most people are able to take an ade- quate supply of clean drinking water for granted. This is due in large part, to the planning and conservation efforts of state and local water districts or authorities. Water authorities, such as Petitioner, administer a complex process of conserving, purifying, piping and delivering potable water to homes, farms and busi- nesses across this nation. As a result, in most in- stances, citizens of this country can turn on a faucet without regard to the vital and sophisticated process involved in sustaining safe and adequate water in the human environment. Although modern technology has been brought to bear on the water supply process, the availability of adequate and safe water is still very dependent on the forces of nature. As graphically illustrated by events in southern California over the last eighteen months, a natural drought can debilitate the environ- ment, for humans and wildlife alike. Through a so- phisticated study of available supply, climate, geography and population, water authorities project the need for water and decide the best means to satisfy it. As the result of such studies, in the spring of 1985 the Authority announced its preliminary decision to construct the Waters Bluff Reservoir (‘‘Waters Bluff’) along the Sabine River in Smith, Upshur and Wood Counties, Texas, to assure an adequate and safe sup- ply of water in east Texas. Waters Bluff would entail the inundation of portions of the Little Sandy Hunting and Fishing Club (the ‘“‘Club”’), a private club serving the recreational needs of a small and exclusive mem- bership. After the Authority announced its intentions. F'WS, in coordination with the Club and with little regard for the Authority’s studies in support of Waters Bluff, took a conservation easement over the Club lands and deposited the land in the National Wildlife Refuge System. FWS’s action precluded the Authority, as an agency of the State of Texas. from using the site to meet anticipated water supply needs and safeguarded the Club lands for the continued ex- clusive use of its members. F'WS prepared an environmental assessment (‘‘EA’’) in connection with the acquisition of the Club ease- ment. The EA’s cursory and result-oriented review of water supply reflected the agency’s inexperience in water supply planning. Experts in water issues within the Department of Interior, however, had a deeper respect forthe vital importance of water supply plan- ning and voiced concern that the easement acquisition might jeopardize the future supply of water in the environment. These experts strongly objected to ac- quisition of the Club easement without the benefit of an Environmental Impact Statement (‘‘EIS’’) to ad- dress water supply and concluded that the EA was “‘a biased document frequently lacking in data and evi- dence but rich in negatives and superlatives.” (See App. E, Letter From Bureau of Reclamation, Chief of the Environmental Branch to FWS, Regional Planning Of- ficer). FWS was indifferent to the concerns raised by these experts. Consumed by its objective to preserve the Club property, FWS dedicated much of the EA to a discussion of how Waters Bluff would injure migra- tory bird habitat. Yet, the EA should have addressed how the agency’s action would impact water supply, not how Petitioner’s proposed development of Waters Bluff would impact migratory bird habitat. The limited discussion of water supply issues that did appear in the EA was fraught with factual errors, all of which were fully discussed in Petitioner’s briefs below. Accordingly, the Authority brought suit to chal- lenge FWS’s easement acquisition under NEPA claim- ing that the agency should have prepared an EIS to consider the effect of its action on water supply for the residents of Texas. The jurisdiction of the district court over the Authority’s NEPA claims was prem- ised on 28 U.S.C. §§ 1831 and 1861 and the Admin- istrative Procedure Act, 5 U.S.C. §§ 701-706. At the close of discovery, both the Authority and FWS moved for summary judgment. The district court, sharing FWS’s disregard for water supply, affirmed the agency’s FONSI. Water was discounted so drastically by the district court that it was no longer even regarded as an environmental issue within the “zone of interests’ protected by NEPA. (See App. B at 39a (Authority’s claims ‘“‘con- trary to purposes of NEPA” and “‘not within NEPA’s Suede ee sane scope’’)). This predisposition heavily influenced the district court, causing it to overlook the errors and inadequacies of FWS’s EA pointed out by the Au- thority. As far as the court was concerned, FWS’s preparation of an EA was gratuitous because the court determined that the Authority’s water supply interests were contrary to, and unprotected by, NEPA in the first instance. (See, é.g., App. B at 48a-49a (FWS failure to consider controversial, precedential and cumulative effects of action excused because F'WS’s action beyond scope of NEPA anyhow)). The district court so undermined the nature of the Au- thority’s interest in water supply that the Authority was even denied standing to assert a claim under NEPA. The Fifth Circuit Court of Appeals, unable to accept that the supply of water, a life-sustaining element critical to the human environment, was not protected by NEPA, reversed the decision of the district court on standing, stating: the injuries alleged by the plaintiffs in their complaints - 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. (App. A at lla (emphasis in original), citing, Lujan v. National Wildlife Federation, ___ U.S. In ervation Program Concept Plan and Bottomland Hardwoods Land Protection Plan. * Both lower courts find great favor in the remark of one district judge that “NEPA does not require a federal agency to prepare an EIS in order ‘to leave nature alone.’ (App. A at 20a; App. B at 8la, citing, National Association of Property Owners v. United States, 499 F. Supp. 1223, 1265 (D.Minn. 1980). The Authority respectfully contends that this maxim is the prod- 12 certain circumstances, the most environmentally de- structive option is to leave nature alone. Often what is warranted is not preservation, but “environmental management.’’® Environmental management entails affirmative conduct to maintain a desired balance in an ecosystem that has been unbalanced, often by some human disruption. The progressive character of en- vironmental management stems from a recognition that mankind must exercise active stewardship over the environment. By assuming that preservation is always the most environmentally sound course of ac- tion, the ruling in this case may contribute to future environmental degradation by excluding from NEPA environmentally harmful actions taken in the name of preservation. The court of appeals held that pure preservation actions will never have an adverse impact on the hu- man environment. (App. A at 22a (Where ‘“‘land is earmarked as a wildlife habitat and migratory bird refuge ... this intended ‘use’... has no significant environmental impact.’’)). Plainly this holding is inac- curate, where preservation would preclude a pro-active plan of environmental management designed to pro- uct of a simplistic, shortsighted and incomplete understanding of environmental protection. § It is now recognized that wildlife management does not mean absolute protectionism. One of the most important tasks of the wildlife manager is to control the numbers of species which become over abundant in limited park ecosystems be- cause they are freed from the threats of predation and hunt- ing. Schectman, “The Bambi Syndrome:’’ How NEPA’s Public Par- ticipation In Wildlife Management Is Hurting The Environment, 8 Envt’l L. 611, 642 (1978). 13 mote a balanced ecosystem. See, e.g., Defenders of Wildivfe v. Andrus, 627 F.2d 1238, 1240 (D.C.Cir. 1980)(state plan to promote moose population entailed killing wolves); American Horse Protection Assoc. v. Andrus, 608 F.2d 811, 814 (9th Cir. 1979\action to protect grasslands entailed relocation of wild horses). If permitted to stand, the lower court’s ruling will eliminate the need for agencies to consider NEPA at all even when the preservation action precludes an- other federal, state or private environmental body from engaging in wildlife management.’ IV. The Decision Below Misapplied Metropolitan Edi- son To Exclude From NEPA Federal Actions Which Preserve The Physical Environment. The court of appeals rests its decision excluding preservation actions from NEPA on this Court’s hold- ing in Metropolitan Edison Co. v. People Against Nu- clear Energy, 460 U.S. 766 (1983). Based on Metropolitan Edison, a case involving the re-start of ’ The fallacy in excluding preservation actions from NEPA is also illustrated by actions outside the realm of wildlife manage- ment. For instance, suppose the state in administering its forests engaged in a practice of extinguishing naturally caused fires. Suppose further that FWS then acquired a portion of these forests for a refuge and, with respect to these lands, adopted a contrary policy of allowing natural fires to burn themselves out reasoning that fires from electrical storms would promote the growth of sequoias. See, e.g., Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1194 (9th Cir. 1988\testimony that min- eral soil needed for sequoia reproduction was provided by light- ning fires). FWS’s acquisition would escape NEPA review under the ruling of this case because it ‘leaves nature alone” by merely preserving the forest in its natural state, even though the prac- tice of allowing fires to burn freely raises obvious environmental concerns that should be fully explored in a NEPA review. 14 the Three Mile Island nuclear plant, the lower court concluded that FWS was not obliged to prepare an EIS because pure preservation actions do not change the physical environment. (App. A at 21a (“The ac- quisition of a negative easement ... does not result in the requisite ‘change’ to the physical environment.’’)). This holding is primarily the result of a misunderstand- ing and misapplication of Metropolitan Edison. A. Metropolitan Edison Does Not Turn On The Causal Re- lationship Between The Federal Action And A ‘‘Change In The Physical Environment.”’ It is elementary that NEPA governs (1) major fed- eral actions that (2) may cause an adverse environ- mental impact or effect. NEPA, § 102(C), 42 U.S.C. § 43832(C). In order for an environmental effect to warrant consideration under NEPA there must be a “reasonably close causal relationship between a change in the physical environment and the effect at issue.”’ Metropolitan Edison, 460 U.S. at 774 (em- phasis added). The ‘“‘effect’’ at issue in Metropolitan Edison was the psychological harm that allegedly would result from people’s perceptions of the “risk of a nuclear accident.’”’ Yet because ‘‘a risk, is, by definition unrealized in the physical world,” this Court held that there was no causal relationship between the alleged effect, psychological harm, and a change in the physical environment. Jd. at 775. For purposes of the present case it is important to note that Met- ropolitan Edison did not focus on the relationship between the federal action and a “‘change in the phys- ical environment,”’ but, rather, involved the relation- ship between the alleged effect and a ‘‘change in the physical environment.”’ Metropolitan Edison, 460 U.S. at 774 (‘[T]he terms ‘environmental effect’ and ‘en- 15 vironmental impact’ ... (must) include a requirement of a close causal relationship between a change in the physical environment and the effect at = 1s- sue.’’(emphasis added).* Nonetheless, the opinion by the court below states: The Supreme Court’s decision in Metropoli- tan Edison Co. v. People Against Nuclear En- ergy 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). (App. A at 21a). Herein ‘ties the court of appeals’ fundamental analytical error. Contrary to the lower court opinion, nothing in Metropolitan Edison sug- gests that the federal action in and of itself must constitute a change in the physical environment of the specific site affected. Yet this is the holding be- low. (See App. A at 21a)‘‘The acquisition of a neg- ative easement...does not result in the requisite ‘change’ to the physical environment.’’)). The court of * Thus, this Court in Metropolitan Edison did not require that the re-start of Three Mile Island be proximately related to a change in the physical environment, only that the alleged effect, psychological harm, be related to such a change. Of course NEPA requires one uninterrupted causal chain, beginning with (1) a federal action that (2) causes environmental effects that, in turn (3) are causally related to a change in the physical environment. The point to emphasize, is that the “change in the physical environment”’ elucidated by Metropolitan Edison need not be contemporaneous with the taking of the federal action, but may manifest itself later in time as the effects of a federal action are felt. 16 appeals has shifted the causal requirement of a change in the physical environment, from the environmental effect alleged, to the federal action at issue. This misreading of Metropolitan Edison gravely distorts the law of NEPA. Plainly, the focus of NEPA is on adverse environ- mental effects, not on the metaphysical essence of the federal action.’ If these effects are causally re- lated to a change in the physical environment, they are properly subject to NEPA, without regard to the particular character of the federal action. Metropoli- tan Edison, 460 U.S. at 774. Thus, title transfers - federal actions that do not themselves change the physical environment - are still subject to NEPA.” Similarly, often an agency must prepare an EIS when granting a lease, license or permit or before issuing a recommendation or proposal, even though such ac- *Instructive is City of New York v. United States Dept. of Transp., 715 F.2d 732 (2d Cir. 1983); cert denied, 465 U.S. 1055 (1984). The second circuit noted that the federal action of trans- porting radioactive waste did not appear to use a natural re- source, Jd. at 742; in other words the federal action did not “change in the physical environment.’’ While the court opined that “‘the movement of radioactive material along highways (could) be considered a ‘use’ of the surrounding air,” Jd. at 742, n.9, the applicability of NEPA was not dependent on the federal action having a close causal relationship to a ‘‘change in the physical environment.” It was enough that the alleged effect, a possible accident, would cause adverse change in the physical environment. 10 See, e.g., Lockhart v. Kenops, 927 F.2d 1028, 1032 (8th Cir. 1991), cert. denied, ___ U.S.____ , 112 S.Ct. 186 (1991); Bob Mar- shall Alliance v. Hodel, 852 F.2d 1223, 1227 (9th Cir. 1988), cert. denied, 489 U.S. 1066 (1989); Conservation Law Foundation v. General Services Admin., 707 F.2d 626, 633 (1st Cir. 1983). 17 tion likewise does not change the physical environ- ment."’ Notwithstanding the absence of change in the phys- ical environment, title transfers, leases, licenses, rec- ommendations and proposals are subject to NEPA, because they create a “‘risk’’ that subsequent action may injure the physical environment. “The Supreme Court has indicated that environmental risks are en- vironmental effects that fall within NEPA.” D. Man- delker, Law & Litigation, § 8.44 n.1 (1984)citing Metropolitan Edison); see also Baltimore Gas & Elec- tric Co. v. Natural Resources Defense Council, 462 U.S. 87, 100 (1983)(‘‘An agency must allow all sig- nificant environmental risks to be factored into its decision.”’); 40 C.F.R. § 1508.27(b\5\The ‘“‘signifi- cance’’ of a major federal action depends in part on ‘(t]he degree to which the possible effects on the human environment are highly uncertain or involve unique and unknown risks.’’).'* Again, the failure of ‘1 See, e.g., Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988\sale of leases created risk of substantial impact on envi- ronment), cert. denied, 489 U.S. 1012 (1989); La Flamme v. Federal Energy Regulatory Com., 852 F.2d 389 (9th Cir. 1988XFERC issuance of license for hydroelectric plant must com- ply with NEPA); Aberdeen & R. R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 422 U.S. 289, 320 (1975XEIS required at time agency makes a recommendation or report on proposal for federal action). ‘2 See also; Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 146 (1981\dictum\proposal to store nuclear weapons would trigger obligation to prepare EIS to consider environmental haz- ards); Northwest Indian Cemetery Protective Ass’n v. Peterson, 764 F.2d 581, 587-88 (9th Cir. 1985XEIS must consider risk to water quality arising from possible landslides triggered by road construction), rev’d on other grounds sub. nom., Lyng v. North- 18 the court of appeals to recognize FWS’s duty to ad- dress in an EIS the risk to water supply created by the agency’s action was the product of a misreading of Metropolitan Edison. B. Metropolitan Edison Does Not Exclude From NEPA Risks Of Environmental Injury. The court of appeals has adopted the finding of the district court that the ‘‘same element of risk is pres- ent’’ in the instant case as was at issue in Metro- politan Edison. (App. B at 36a).'° The lower courts fail to appreciate that the ‘“‘risk’’ analysis presented in this case is wholly distinct from that discussed in Metropolitan Edison. The decisions below state that, because environmental ‘“‘risks’’_are not “‘changes in the physical environment,” the environmental injuries that would result should such risks materialize, need not be considered in an EIS." west Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988); City of New York, 715 F.2d at 745 (action posed risks warranting careful consideration under NEPA). ‘3 The court of appeals avoids explicitly discussing the question of ‘environmental risk”’ raised in this case, instead choosing to adopt the lower court’s reasoning. (App. A at 3a (‘‘Rather than dilute the strength of the district court’s reasoning and pollute the legal environment with an expansive discussion of our own, we write only to express the depth of our commitment to the district court’s fluid opinion.’’)). ‘4In this regard, Professor Mandelker apparently has pro- phesied the lower courts’ misinterpretation of Metropolitan Edi- son when he states: The decision (Metropolitan Edison) could cast doubt on cases which have required agencies to analyze the environmental risks of their action although the Court did not appear to 19 The Authority has not asked FWS to prepare an EIS to consider injury caused solely by the risk of a water shortage. For instance, FWS was not asked to prepare an EIS to consider any psychological harm to the residents of east Texas arising from their per- ception of the risk of a water shortage. The Authority concedes that a risk of a water shortage, being “‘un- realized in the physical world,” is not a change in the physical environment and any injury flowing therefrom would not trigger an EIS. Metropolitan Edison, 460 U.S. at 775. To the contrary, the- Authority asked FWS to consider the injury to the physical environment should the risk of a water short- age be realized. Although lost on the courts below, the distinction between injury caused by a “risk qua risk” and injury caused by the realization of a risk was carefully noted by Justice Rehnquist in Metro- politan Edison. (In this case (Metropolitan Edison) we are considering effects caused by the risk of an accident. The situation where an agency is -asked to consider effects that will occur if a risk is realized . . . is an entirely different case. Metropolitan Edison, 460 U.S. at 775, n.9. This qual- ification is wholly consistent with precedent that re- quires an agency to consider the environmental injury that would result if realization of a risk posed by disagree with these cases. D. Mandelker, NEPA Law & Litigation, § 8.43 (1984). This petition should be granted to clarify that an EIS must consider significant environmental risks when the realization of such risks would adversely change the physical environment. 90) agency action would manifest a change in the physical environment. See note 12, supra and accompanying text. The subtle, but critical, distinction between in- jury caused by a “risk qua risk’ and injury caused by realization of a risk, seems also to have escaped other lower courts. See, e.g., No GWEN, Inc. v. Ald- ridge, 855 F.2d 1380, 1385 (9th Cir. 1988)(discussion of district court’s misplaced reliance on Metropolitan Edison to place risk created by federal action outside NEPA). It is beyond question that the realization of a water supply crisis would entail a change in the ,physical environment (e.g., desertification, loss of wildlife and foliage). The Authority presented to FWS significant evidence demonstrating the likelihood of such a shortage and the injury that would result therefrom. The corollary in Metropolitan Edison to the effect complained of in this case, the effect of a nuclear accident, was considered by the Nuclear Reg- ulatory Commission (the ‘“‘NRC’’) and this Court in- dicated that this type of risk was cognizable under NEPA. As a final note, the environmental harm articulated by the Authority is not comparable to the psycholog- ical harm of concern in Metropolitan Edison. A water shortage is causally related to a change in the en- vironment and is unquestionably cognizable under a statute designed to protect ‘‘the air, land and water which support life on earth,” Metropolitan Edison, ‘460 U.S. at 778, citing, Leg. History, 115 Cong. Rec. 40416 (1969\remarks of Sen. Jackson). Unlike the problem that would have faced the NRC had it been required to study the questions of psychological health, water supply, though not directly within FWS’s area of expertise, is within the Department of Interior’s bho expertise. Requiring FWS to consider the water sup- ply views of its sister agencies, such as the Bureau of Reclamation, would not oblige FWS ‘‘to expend considerable resources developing ... expertise that is not otherwise relevant to (its) congressionally as- signed functions.’”’ Metropolitan Edison, 460 U.S. at 776. The effect of a water supply crisis on the phys- ical environment cannot be overstated. A lack of water threatens all life in the affected area. The loss of forest, crops and wildlife, the drying of streams, lakes and springs and the scorching of land are phys- ical changes that result from a water shortage - they are not merely psychological effects that exist in the minds of men. While action taken to preserve the environmental status quo, by its very terms, does not itself cause a change in the physical environment of the specific site affected, (App. A at 20a and 21a, citing, Ono v. Har- per, 592 F. Supp. 698, 701 (D. Hawaii 1983)), it may induce conditions that will result in deleterious change to the surrounding physical environment. In other words, such action creates the risk of significant en- vironmental injury. This petition should be granted to clarify the Court’s holding in Metropolitan Edison, and, in particular, the aspect of that decision regard- ing an agency’s obligations to prepare an EIS where the realization of such a risk would result in an ad- verse ‘‘change in the physical environment.”’ Under the facts of this case, FWS’s action to pre- serve land for inclusion in the National Refuge Sys- tem inhibits Texas’ management of its limited water supply resources thereby creating the risk of a water shortage. This risk of injury to the physical environ- ment must be considered under NEPA. ai a CONCLUSION The petition for a writ of certiorari should be granted. By excluding FWS’s action in this case from NEPA, the decision below has injected a substantive bias in favor of preservation that is inconsistent with NEPA’s outcome neutral application. By treating preservation as wholly consistent with NEPA’s ob- jectives, the decision below fails to appreciate that preservation is not always the optimal environmental response. Finally, the legal basis to support the ex- clusion of preservation actions from NEPA, is derived from a misapplication of the rule in Metropolitan Edi- son that environmental effects be causally related to a change in the physical enviroriment. Respectfully submitted, WILLIAM H. BURCHETTE* CHRISTINE C. RYAN VINCENT P. DUANE JORDEN SCHULTE & BURCHETTE 1025 Thomas Jefferson Street, N.W. Suite 400 East Washington, D.C. 20007 (202) 965-8100 EARL ROBERTS ROBERTS, HILL & CALK 2020 Bill Owens Parkway Suite 200 Longview, Texas 75604 (903) 759-2020 Attorneys for Petitioner Sabine River Authority June 2, 1992 “Counsel of Record APPENDIX la 1 5 { 5 4 ! { | APPENDIX A United States Court of Appeals, Fifth Circuit. No. 90-4761. Rares 8 ae SABINE RIVER AUTHORITY, Plaintiff-Appellant, and Texas Water Conservation Association, Plaintiff-Intervenor-Appellant, v. z Tee) es ciaibing ahs Ib ei keS. 2. BRON A U.S. DEPARTMENT OF INTERIOR et al., Defendants-Appellees. and The Sierra Club and the National Audubon Society, Defendants-Intervenors-Appellees. Jan. 28, 1992. Rehearing Denied March 4, 1992. j Action was brought challenging the Fish and Wildlife Service’s compliance with the National Environmental Pol- icy Act (NEPA) in connection with proposed acquisition of conservation easement on wetlands habitat. On cross mo- tions for summary judgment, the United States District Court for the Eastern District of Texas, Paul N. Brown, J., 745 F.Supp. 388, dismissed plaintiffs’ claims, and plaintiffs appealed. The Court of Appeals, Goldberg, Cir- cuit Judge, held that: (1) river authority and conservation association that wanted wetlands area for construction of Da SRIRAM ins UE Oi lr ois pe en tn WA 2a reservoir suffered sufficient “injury in fact’’ from grant of nondevelopment easement to have standing to challenge acquisition of easement based on Service’s failure to pre- pare 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 hu- man environment” so as to mandate preparation of EIS. Affirmed. William H. Burchette, Christine C. Ryan, Jorden Schulte & Burchette, Washington, D.C., Earl Roberts, Jr., Rob- erts, Hill & Calk, Longview, Tex., for Sabine River Au- thority. Michael J. Booth, Frank R. Booth, Booth & Newsom, Austin, Tex., Ruth H. Yeager, First Asst. U.S. Atty., Ty- ler, Tex., Lisa Hemmer, Atty., Robert L. Klarquist, Dept. of Justice, Appellate Section, Environmental Natural Re- sources, Washington, D.C., for Texas Water Conservation Ass’n. Jos. Irion Worsham, Worsham, Forsythe, Samples & Wooldridge, Dallas, Tex., for Little Sandy Hunting & Fish- ing Club. Robert G. Dreher, Sierra Club Legal Def. Fund, Wash- ington, 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: GOLDBERG, Circuit Judge: * District Judge for the Northern District of Texas, sitting by des- ignation. 3a 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, containing high-quality wetlands and wildlife habitat essential to migratory waterfowl. The Little Sandy Hunting and Fishing Club donated the ease- ment 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 industrial 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 Con- servation Association, though not unsympathetic to the plight (and flight) of 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 Envi- ronmental Impact Statement (an ‘‘EIS’’) in connection with the acquisition of the easement. When the district. court dismissed their claims by way of summary judgment, Sa- bine 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 Con- servation Association, and we are hard-pressed to improve 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 reasoning and pollute the legal environment with an expansive discussion of our own, we write only to express the depth of our commitment to the district court’s fluid opinion. We must remediate in one area, however, filtering out the minute particles of contaminant in the district court’s ‘‘standing’’ water. — CL LL LOLOL LL 4a PHASE I Wetlands, with its swamps, marshes, bogs, mud flats and other water-dependent community types, are an eco- logical 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, wet- lands foster high species diversity, density, and productiv- ity by providing both food and habitat, in the form of nesting sites, breeding and rearing areas, feeding grounds, and cover from predators. Office of Technology Assess- ment, Wetlands: Their Use and Regulation, at 5-6, 30, 52 (1984). Many endangered species rely on our wetlands for their survival and reproductive success. Without the wet- lands, we are all but assured of their extinction. Beyond the direct import of wetlands to wildlife, they also serve other equally significant environmental func- tions. One of the more apparent is their favorable effect on our water quality. By filtering contaminants out of water before they can reach the open water, wetlands serve as nature’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 by commercial, agricultural, and industrial development. In the last 200 years, thirty to fifty percent of our nation’s wetlands have disappeared. Because wetlands are critical to flood control, water sup- ply, water quality, and, of course, wildlife, their rapid dis- appearance is setting the stage for what may eventually become a significant environmental catastrophe. The State of Texas alone has lost 8 million acres, nearly half of its original wetlands. With only some 7.6 million acres re- maining, 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 protecting and maintaining the pop- ulation of migratory waterfowl, other wildlife resources, and endangered species. Toward that end, it established the National Wildlife Refuge System, a project that has earned widespread approval from environmental groups. Through the Refuge System, the Fish and Wildlife Service has acquired millions 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 rec- ipe without any artificial ingredients. These lands provide a winter home to the thousands of migratory birds utilizing the “Central Flyway”’ and support large populations of Native North American wood ducks. U.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 simple; but since the Fish and Wildlife Service merely seeks to prohibit environmentally destructive activity on the land, much of it is obtained in the form of leases and easements which preclude development of the land. This method proves far more economical in effectuating the goal of preventing adulteration to the lands, because the government need not buy the property and take title outright; it can accept a nondevelopment easement—a promise by the owner to refrain from developing the property in a manner incon- sistent with wetland preservation—and thereby achieve the goal of protecting the environmental status quo at a frac- tion of the cost. The Fish and Wildlife Service acquired the Texas wet- lands at issue in this case precisely in this manner. Little Sandy Hunting and Fishing Club donated a nondevelop- ment easement on approximately 3800 acres of its land to the Fish and Wildlife Service so that the character of the 6a wetlands would remain unchanged, undeveloped, in per- petuity. These lands had been targeted by the Fish and Wildlife Service for several years because of its particu- larly rich natural attributes. Some studies rated the veg- etation on Little Sandy’s land as ‘‘one of the most pristine bottomland areas i[n] the state [of Texas].’’ The lands con- sist of “old-growth timber,’’ including willow, oak, hickory, gum, elm, ash, hackberry, palmetto, switchcane, and pos- sum 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 Con- servation Association, cognizant that the federal govern- ment’s acquisition of this land foreclosed the State of Texas from taking the property by means of eminent domain, were less than pleased to learn of the donation. They had given serious consideration to using that land to 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 construc- tion of the reservoir, aimed at satisfying the anticipated need for additional 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 contracts for the 300 thousand plus acre feet of water that the reservoir would generate each year. Nevertheless, they were dissatisfied with the turn of events and filed suit in the Eastern District of Texas alleging 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 ac- quisition of the Little Sandy non-development easement. They alleged that the easement was interfering 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 ease- ment constituted a “major federal action significantly af- fecting the quality of the human environment.” 42.U.S.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 dismissed their claims by way of summary judgment. The court reasoned that the Fish and Wildlife Service had prepared an adequate En- vironmental Assessment (the “EA”) and had issued a “Finding of No Significant Impact” (““FONSI’) as a pre- cursor to acquiring the easement. Concluding that there was no corresponding change in the physical environment flowing from the acquisition of the non-development ease- ment, the district court held that the Fish and Wildlife Service’s decision to forego an EIS was not arbitrary and capricious. Jd. at 392-97. It dismissed the lawsuit. and this appeal followed. PHASE II A preliminary issue in this case, indeed in every case, is whether the party bringing the lawsuit has standing. After rejecting 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 reasoned that: 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 unquestionably an interest that is subject to the pro- visions of NEPA, but it is not an interest that NEPA was designed to protect. 745 F.Supp. at 397. In essence, the district court concluded that because the Fish and Wildlife Service was not obli- 8a gated under NEPA to prepare an EIS under the circum- stances present in this case (a conclusion with which we agree), the injuries alleged by the plaintiffs as a conse- quence of the absence of an EIS were not within the zone of interests protected by NEPA. With that conclusion we disagree. The standing inquiry has constitutional, statutory, and judicially formulated components. North Shore Gas v. EPA, 930 F.2d 1239, 1242-43 (7th Cir.1991). It has as its origins the constitutional requirement that federal courts only de- cide cases or controversies. Constitution, Article III, § 2. When we say that a particular plaintiff has no standing to bring the lawsuit in the constitutional sense, we mean that the plaintiff has not suffered an injury which is re- dressible by the court. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). This inquiry pleces not too heavy a burden on a prospective plaintiff because even ‘fa probabilistic benefit from winning a suit is enough ‘in- jury in fact’ to confer standing’’ under the Constitution. North Shore Gas, 930 F.2d at 1242. 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-being.” Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 640 (5th Cir.1983). The procedural injury implicit in agency failure to prepare an EJS—the creation of a risk that serious environmental 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 proj- ect [such that they can] expect[ ] to suffer whatever environmental consequences 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, modified, 850 F.2d 599 (9th Cir.1988); see also South 9a East Lake View Neighbors v. Dept. of Housing and Urban Development, 685 F.2d 1027, 1039 (7th Cir.1982) (constru- ing City of Davis to hold that the “injury occurred with the creation of a risk that potential environmental damage | would go undiscovered’’); cf. North Shore Gas, 930 F.2d at 1242 (‘fa probabilistic benefit from winning a suit is enough ‘injury in fact’ to confer standing in the unde- manding Article III sense’’); but see Greenpeace USA 1. Stone, 748 F.Supp. 749, 755 (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). The Sabine River Authority has been charged by the State of Texas with the weighty responsibility of man- aging, conserving, and monitoring the waters of the Sabine River in order to meet the ‘‘domestic uses of the people in the district, including 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 sup- ply) attendant to the Fish and Wildlife Service’s acquisition of the Little Sandy Easement. The Texas Water Conser- vation Association is an organization 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 authorities, individuals, firms, corporations, cities, water districts, public and pri- vate agencies and groups dedicated to the task of con- serving, developing, protecting and utilizing the water resources of Texas for beneficial purposes.’’ This organi- zational 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, Inc., 711 F.2d at 640 (organizational plaintiff had standing because member of organization who fished at site in question was “‘injured’’ by adverse aesthetic im- 10a pact). The injuries that these parties allege relate to the adverse environmental 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 Na- tional Wildlife Refuge System, [the Sabine River Au- thority] cannot build the Waters Bluff Reservoir. Although federal law provides certain procedures by which land may be released from the Refuge System, there is certainly a risk that [the Sabine River Au- thority] may not convince 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 property 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 speculation attendant to predic- tions of this sort, the injuries alleged are not ‘‘too spec- ulative to support their standing.” South East Lake View Neighbors, 685 F.2d at 1035. While still in the early plan- ning stages, plaintiffs were intent on going forward with the construction of the Waters Bluff Reservoir to preter- mit 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 defendant’s allegedly illegal conduct and the plaintiffs purported injuries,’ id. at 1036, sufficient to confer standing in the constitutional sense. In the context of NEPA, however, the Supreme Court has recently explained that beyond the constitutional standing requirements, ‘“‘the plaintiff must establish that the injury he complains of (his aggrievement, or the ad- verse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose lla violation forms the legal basis for his complaint.’’ Lujan v. National Wildlife Federation, __U.S. —__, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990) (emphasis in original); see also Greenpeace USA, 748 F.Supp. at 756 (Lujan “‘ap- pears to heighten the requirements 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 failed to comply with a statutory provision that requires that all proceedings be transcribed; nevertheless, because the par- ties to the proceedings, and not the court reporters, are the intended beneficiaries 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, 110 S.Ct. at 3186. We are persuaded that the injuries alleged by the plaintiffs in their complaints—harmful effects on the qual- ity and quantity of East Texas’ water supply—’’are among the sorts of interests’’ that NEPA was specifically de- signed to protect. Lujan, 110 S.Ct. at 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 supply are prototypically matters of great environmental concern. E.g., Olmsted Citizens for a Better Community, 793 F.2d 201, 205 (8th Cir.1986) (a federal action which ‘“‘poses a threat to the physical resources of the area because of anticipated ... water supply problems’’ must be preceded by an EIS); Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 851-53 (9th Cir.1979) (holding that an EIS was required ‘‘to evaluate the environmental consequences of [the] decision [to divert water to industrial use]’’); City of Davis v. Coleman, 521 F.2d 661, 671-72 (9th Cir.1975) 12a (allegations in complaint ‘“‘that the planned industrial de- velopment . . . 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. §§ 43821, 4331(c); see also Metro- politan Edison Co. 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 con- cern of NEPA). Moreover, these plaintiffs are the proper plaintiffs to raise these claims. Although ‘‘the intended beneficiaries of NEPA are individual citizens ... the stat- ute expressly contemplates that state and local govern- ments are to play an important role in the effectuation of national environmental policy.”” City of Davis, 521 F.2d at 672 (citing 42 U.S.C. §§ 4331(a), 43382(2\C), 4332(2\F), 4341(4), 4345(1)). This is not a case brought by a disappointed 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 accepted the negative easement. Like the court reporter example posited in Lu- jan, the contractor, though arguably aggrieved as a result of the Fish and Wildlife Service’s acceptance of the neg- ative easement, would not have standing under the ‘‘zone of interests” test because NEPA was not designed to pro- tect contractors’ rights: it was designed to protect the environment. Perhaps the best way to illustrate 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 easement, 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 13a Water Conservation Association would (and do) have standing to bring a lawsuit because the alleged harm flow- ing to these plaintiffs from the defendant’s non-compliance with NEPA is of a kind with which NEPA is concerned. PHASE III This case arises under the network of NEPA, a statute drafted to ensure that federal agencies “‘carefully consider detailed information concerning significant environmental impacts,’ and at the same time “guarantee{ ] that the relevant information will be made available to the larger audience that may also play a role in both the decision- making process and the implementation 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 15338, 1540 (11th Cir.1990). It is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment be an environ- mentally conscious one. The statute does not command the agency to favor an environmentally preferable course of action, only that it make its decision to proceed with the action after taking a “‘hard look at environmental conse- quences.”’ 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 undertaking of federal projects patently de- structive of the environment; it simply mandates that the agency gather, study, and disseminate information con- cerning the projects’ environmental consequences. ‘‘Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits unin- formed—rather than unwise—agency action.” Jd. How much information the agency must process is the subject of this litigation. NEPA instructs that federal agen- cles: l4a include in every recommendation or report on pro- posals for legislation and other major Federal actions significantly affecting the quality of the human en- vironment, a detailed statement by the responsible official 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. § 4832(2\(C). Thus, NEPA directs federal agen- -cies to prepare what is commonly known in the industry as an Environmental Impact Statement (an “EIS’’) when it engages in “major Federal action[ ] significantly af- fecting the environment.”’ ‘“‘An environmental impact statement is intended to detail the environmental and economic effects of any proposed federal action so that those not directly in- volved can understand and give meaningful consid- eration to and make appropriate comment on the factors involved. It also ensures that the decision- maker give serious weight to environmental factors in making discretionary choices.” State of Louisiana v. Lee, 758 F.2d 1081, 1084 (5th Cir.1985). An EIS is “not required for non major action or a major action which does not have significant impact on the environment.” Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir. Unit B 1981) (emphasis added). To assist federal agencies in resolving 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. March, 769 F.2d 868, 870 (1st Cir.1985). These regulations are entitled to substantial deference, Robertson, 109 S.Ct. at 1848, and “are binding on federal agencies.”’ Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985). 15a The CEQ regulations permit federal agencies to make a preliminary “Environmental Assessment” (‘‘EA’’) aimed at determining whether the environmental ef- fects of a proposed action are “‘significant.’’ 40 C.F.R. §§ 1501.3, 1501.4, 1508.9, 1508.27 (1984). According to these regulations, the EA is a “‘concise’’ document that ‘‘briefly’’ discusses the relevant issues and either reaches a conclusion that preparation of an EIS is necessary or concludes with a “Finding of No Sig- nificant Impact’’ (called in environmental jargon, a “FONSI’). Jd. §§ 1508.9, 1508.13. Sierra Club v. March, 769 F.2d at 870. Thus, ‘t]he pur- pose of an EA is to ‘provide sufficient evidence and anal- ysis for determining whether to prepare an [EIS].’ ”’ Fritiofson, 772 F.2d at 1236 (quoting 40 C.F.R. § 1508.9(a\1)). The EA is “‘a rough- cut, low-budget en- vironmental impact statement designed to show whether a full-fledged environmental impact statement—which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project—is necessary.”’ Cronin v. U.S. 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 environmental impact, or that the project will have no significant impact (a “FONSI’’) necessitating no further study of the environmental consequences which would ordinarily be explored through an EIS. Fritiofson, 772 F.2d at 1236; Marsh, 769 F.2d at 870. 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(2XA). Before today, our court instructed that a re- viewing court should apply the moderately deferential “reasonableness” standard—rather than the highly defer- ential “arbitrary and capricious” standard adopted by other 16a 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 supplemental EIS is reviewable under the “ar- bitrary 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 decision not to prepare a supplemen- tal EIS as opposed to an agency’s decision not to prepare the original EIS, the “legal standard for determining when a supplemental EIS is required is ‘essentially the same as the standard for determining the need for an original KIS.’ ” Fritiofson, 772 F.2d at 1289 n. 8 (citation omit- ted). 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 (5th Cir.1987)). We believe that it has similarly undercut our precedent applying the reasonable- ness standard with respect to an agency’s decision to for- ego 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 ap- plying the reasonableness standard with respect review of an agency’s decision to forego preparation of an original EIS), cert. denied, __U.S. __, 112 S.Ct. 186, 116 L.Ed.2d 148 (1991). The standard of review is limited, therefore, to the “arbitrary and capricious” standard. Id.; see also North Buckhead Civic Ass’n, 903 F.2d at 1538 (adopting ‘The Fritiofson panel rejected an invitation to abandon the reason- ableness 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. 17a “the arbitrary and capricious standard when reviewing agency action in NEPA cases’’).? Under this highly deferential standard of review, a re- viewing 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 judgment based on a consideration and application of the relevant factors. Id.; Oregon Natural, 109 S.Ct. at 1861. Where conflicting evidence is before the agency, the agency and not the reviewing court has the discretion to accept or 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 qualified and express a reasonable opinion. The re- viewing 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 * We 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.L.C., 911 F.2d 1283, 1292 (8th Cir.1990). If an agency de- termines 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 rea- sonableness 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, F'ritiofson, 772 F.2d at 1237-38, the differences between the two standards is not “‘of great pragmatic consequence.’’ Oregon Natural, 109 S.Ct. at 1861 n. 23 (“[Ojur decision today will not require a substantial reworking of NEPA.’’). And under either standard, we would affirm the judgment below. 18a 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 administrative rec- ords as well as other evidence to determine whether the agenc[y] adequately considered the values set forth in NEPA and the potential environmental effects of the project before reaching a decision on whether an environmental impact statement was necessary. If the agency[y] engaged in this analysis and reasonably con- cluded 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.° 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 credibility de- terminations, we must give great deference to the district court’s conclusions. A court of appeals review of a district court review of an administrative agency’s record is indeed an “awkward legal animal,” but when the district court’s judgment turns on factual matters, or upon the tes- timony of witnesses, or even upon lengthy evidentiary proceedings, the court of appeals should hesitate to reverse. ’ Hassell applied the “‘reasonableness’’ standard. Nevertheless, we be- lieve 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’ and ‘reasonableness’ standards is not of great pragmatic consequence.”’). 19a North Buckhead Civic Ass’n, 903 F.2d at 1539. Where. as here, the district court has resolved the case by way of summary judgment, our review of the district court’s con- clusions is plenary. We undertake 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 (lst Cir.1985). Because the district court’s review 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 (5th Cir.1991). we are in precisely the same position as the district court and can evaluate the record de novo. PHASE IV The Fish and Wildlife Service concluded that by ac- ‘cepting the easement from Little Sandy, it did not un- dertake a major 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 accordingly, 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 dis- trict court concluded 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 action in this case does not alter the environmental status quo; it does not cause any change in the physical environment. 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 OO 20a prepare an EJS in order ‘‘to leave nature 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 when- ever 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 Ser- vice did not effectuate any change to the environment 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.2d 115, 116 (9th Cir. 1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Simply put, we hold that the acqui- sition of a negative easement which by its terms proiibits any change in the status quo does not amount to ‘‘major Federal action{ ] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2\(C); see Burbank Anti-Notse Group, 623 F.2d at 116-17 (no EIS required where FAA provided federal financial assistance in con- nection with the purchase of an airport); Sierra Club ». 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 reg- ulations then in effect); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1003 (D.C.Cir.1979) (no EIS required when government leased parking lot to new park- ing management because no change in the status quo), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980). 2la 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 acquisition of a negative easement which prohibits devel- opment does not result in the requisite ‘“‘change”’ to the physical environment. Of course, when the government conveys property to, or exchanges land with, a private party that plans to develop the land, an EIS is necessary because the conveyance of property is precipitating a change in the physical complexion of the land. Lockhart v. Kenops, 927 F.2d at 1033 (citing National Forest Pres- ervation Group v. Butz, 485 F.2d 408, 411-12 (9th Cir.1973)); 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 Foun- dation of New England, Inc. v. General Services Admin- istration, 707 F.2d 626, 633 (1st Cir.1983). But by merely accepting title to the property—or, as in this case, ac- cepting a negative easement which precludes any devel- opment of the land whatsoever—the government is not undertaking a project that changes the character or func- tion of the land. See Ono v. Harper, 592 F.Supp. 698, 701 (D.Hawaii 1983) (no EIS required where proposed transfer of title would not cause any change in the physical en- vironment). We view the Fish and Wildlife Service’s ‘‘ac- tion” in accepting the negative easement as tantamount to “inaction.” See Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1243 (D.C.Cir.1980) (no EIS required when fed- eral 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 587, 541 (9th Cir.1979) (same); cf. Bunch v. Hodel, 793 F.2d 129, 135- 36 (6th Cir.1986) (abdication of the Fish and Wildlife Ser- vice’s obligations under the terms of a lease and the Mi- 22a gratory Bird Conservation Act could not be viewed as ‘‘inaction’’). The agency came to a finding of no significant envi- ronmental impact, and we detect no error in that forecast.‘ “The court finds it unlikely that a no impact finding would be held unreasonable where the government seeks to ac- quire some additional parcels of land for environmental mitigation purposes.” Sierra Club v. March, 692 F.Supp. at 1221. The land is earmarked as a wildlife habitat and migratory bird refuge. We agree with the Fish and Wild- life 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 federal 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 rela- tionship between a change in the physical environment and the effect at issue.’ Metropolitan Edison, 103 S.Ct. at 1561. Aside from the absence of any “change’”’ in the physical environment, 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 ease- ment. In our view, plaintiffs 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. ‘Ironically, neither does the defendant-intervenor Sierra Club, an environmental group which for the first time, apparently, has advocated against the need for an EIS. 23a 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. — 24a APPENDIX B United States District Court, E.D. Texas, Texarkana Division. No. TX-87-36-CA. SABINE RIVER AUTHORITY, Plaintiff, Texas Water Conservation Association, Plaintiff-Intervenor, V. UNITED STATES DEPARTMENT OF INTERIOR, Donald Paul Hodel, in his official capacity as Secretary of In- terior, 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 Hunt- ing and Fishing Club, Defendants, The Sierra Club and the National Audubon Society, Defendants-Intervenors. Aug. 13, 1990. Action was brought challenging the Fish and Wildlife Service’s compliance with the National Environmental Pol- icy Act in connection with the proposed acquisition of a conservation easement on wetlands habitat. On cross mo- tions for summary judgment, the District Court, Paul N. Brown, J., held that (1) the proposed acquisition did not change the status quo or have a detrimental impact on the environment and, thus, no environmental impact state- 25a ment was necessary; (2) the environmental assessment pre- pared by the Fish and Wildlife Service gave adequate consideration to the need for action, to alternatives, and to comments received from other state and federal agen- cies; and (8) the general plan under which the Service would acquire easements to protect wetlands habitat was not a “‘proposal’’ for major federal action that would re- quire an environmental impact statement. Claims dismissed. William H. Burchette, Christine Ryan, Jorden Schulte & Burchette, Washington, D.C., and Carl Roberts, Lo- ngview, Tex., Frank R. Booth, Booth & Newsome, Austin, Tex., for Sabine River Authority and Texas Water Con- servation 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 defendants 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 motions and supporting briefs, the lengthy admin- istrative 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 The dispute in this case concerns the decision of the Department of the Interior’s Fish and Wildlife Service es 26a (‘“FWS’’) to accept a conservation easement on 3800 acres of land owned by the Little Sandy Hunting and Fishing Club (‘‘Club’’). The FWS’s acquisition of this easement conflicts with the plans of plaintiff Sabine River Authority (‘“SRA’’) to construct the Waters Bluff Reservoir. If con- structed, the reservoir would inundate the lands encom- passed 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 implementing the review process mandated by the National Environmental Policy Act, 42 U.S.C. § 4832 (“NEPA’’). (AR. P).! The FWS also conducted a public hearing on the proposed acquisition. (AR. I). Thereafter, the FWS also issued a “Finding of No Significant Impact” (“FONSIT’’) setting forth the FWS to prepare an environmental impact statement (“‘EIS’’) concerning its acquisition of the ease- ment. (AR. G-79). The FWS then accepted the easement. Plaintiffs’ Claims SRA contends that the FWS’s FONSI and decision not to prepare an EIS concerning its acquisition of the ease- ment violated the provisions of NEPA. SRA claims that the FONSI is erroneous because acquisition of the ease- ment is a “‘major Federal action[ } significantly affecting the quality of the human environment”’ that requires the preparation of an EIS. SRA also claims that the FWS’s EA is inadequate in several respects and that this matter should be remanded tw the FWS for further consideration. Finally, SRA alleges that the acquisition 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. ‘ “AR” refers to the Administrative Record. 27a Plaintiff-Intervenor Texas Water Conservation Associ- ation (““TWCA’’) also contends 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 (‘‘Preser- vation Program’’) is itself a ‘“‘major Federal action{ ] sig- nificantly 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 contend that the FONSI is correct since the easement preserves the ‘‘environmental status quo” by prohibiting development on the land en- compassed by the easement. The FWS also contends that its EA was adequate and that it was not required to pre- pare an EJS concerning the Preservation Program. Finally, the FWS asserts that the terms of the easement do not violate the provisions of either the Fish and Wildlife Act or the Refuge Recreation Act. Il. STANDARD OF REVIEW 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 S.Ct. 1259, 89 L.Ed.2d 570 (1986). NEPA requires the preparation of an [EIS] whenever a major federal action significantly affecting the qual- ity of the human environment is proposed. . . . Judicial review of an agency’s decision not to file an [EIS] is governed by the rule of reasonableness ... whether the agency[’s] decision not to develop an impact state- ment is reasonable and made objectively and made in good faith on a reviewable environmental record. ... If the decision is reasonable, the determination must be upheld. Id. at 1083. a 28a 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 recom- mended project would materially degrade any aspect of environmental quality ... If the court concludes that no environmental factor would be significantly 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 sig- nificant degradation of some human environmental factor (even though other environmental factors are atfected 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 concluding there was no reasonable pos- sibility that the proposed action would significantly de- grade any environmental factor.” Jd. at 1085. The Supreme Court has held that an agency’s decision not to file an EIS should be reviewed under the ‘‘arbitrary and capricious” standard. Marsh v. Oregon Natural Re- sources Council, 490 U.S. 360, , 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989). The Court suggested that there is little or no difference between this standard and the “reasonableness” standard that had been applied hereto- fore by courts in most of the circuits, including the Fifth Circuit. 490 U.S. at__., 109 S.Ct. at 1861 n. 23. In applying this standard of review, a court ‘“‘must consider whether the decision [not to prepare an EIS] was based on a consideration of the relevant factors and whether there has been a clear error in judgment’’. 490 U.S. at . , 109 S.Ct. at 1861. An agency’s decision not to prepare an EIS may be erroneous for one of two different reasons. The evidence 29a in the record may indicate that, “‘contrary to the FONSI, the agency’s proposed action may have a significant impact on the human environment’, 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’’. F’ritiofson v. Alex- ander, 772 F.2d 1225, 1238 (5th Cir.1985). If a court finds that the proposed action may have a significant impact, the court should order the agency to prepare an EIS. /d. 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 inadequacies. Jd. III. REVIEW OF THE FONSI An agency need not prepare an EIS for actions that do not ‘‘significantly affect{ ] the quality of the human envi- ronment’. Citizen Advocates for Responsible Expansion, Inc. v. Dole, 770 F.2d 423, 432 (5th Cir.1985). In deter- mining whether particular agency actions “‘significantly af- fect[ ] the quality of the human environment’, courts have analyzed an agency’s action to determine whether those actions may alter the ‘environmental status quo”’ or cause a “significant degradation of some human environmental 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 Cir.1981).2 Any agency action that “‘may cause a significant degradation of some human environmental factor’’ also requires the preparation 2 See also Sierra Club v. F.E.R.C., 724 F.2d 1506, 1510 (9th Cir.19850; 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). | 30a of an EIS. State of Louisiana v. Lee, 758 F.2d at 1086. Lee and Hassell do not set forth different tests, however, since any action that “‘may cause a significant degrada- tion’ of the environment certainly may cause “a change in the environmental status quo’’. Whether a federal agen- cy’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. Jd. The principle underlying the determination of whether an agency’s action may “‘significantly affect[ ] the quality of the human environment’, by altering the “‘environmen- tal status quo” or causing ‘‘a significant degradation of some human environmental 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 effects of federal actions that may cause changes in the physical environment. ‘‘What is involved [in NEPA] is a congressional declaration that... . we will not intentionally initiate actions which do irreparable damage to the air, land, and water....’’ Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772-73, 103 S.Ct. 1556, 1560, 75 L.Ed.2d 534 (1983), citing, 115 Cong.Rec. 40416 (1969XEmphasis 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 environmental fac- tor . Courts have recognized that federal actions 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 3 See Cases cited at note 2. arrareet Sia «Sanna cael ann 3la transfer of federally owned land to private individuals. The Court stated that “‘the focus of an [EIS] is the change in the physical environment 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 land would cause any change in the physical environment. Jd. at 701. In National Association of Prop- erty Owners v. United States, 499 F.Supp. 1223 (D.Minn.1980), affd, 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 rejected a challenge to the implemen- tation of restrictions’ on recreational activities in a fed- erally-designated wilderness area under 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 wil- derness area did not “significantly affect{] the quality of the human environment”. Jd. at 1265. (T]he Secretary’s implementation of the Act enables no person to significantly affect the Wilderness. In fact, plaintiffs’ major complaint is simply that Con- gress’ mandate to the Secretary will effectively close portions of the Wilderness. ... In essence, plaintiffs’ claim is that the Department of Agriculture must pre- pare an EIS in order to leave nature alone. The Court is not moved by this argument. Id. 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 pc- tential effects of a proposed action that do not have a “reasonably close causal relationship [to] a change in the physical environment caused by the major federal action at issue’’. Metropolitan Edison, 460 U.S. at 774, 103 S.Ct. 32a at 1561. ‘T]he Congressional concerns that led to the enactment of NEPA suggest{] that the terms ‘environ- mental effect’ and ‘environmental impact’ in [NEPA] be read to include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue.’ Jd. at 774, 103 S.Ct. at 1561. Accordingly, any alleged effects of an agency’s action that do not have a reasonably 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 ease- ment depends upon whether the FWS’s action is one that may ‘“‘significantly affect{] the quality of the human en- vironment”’, which, in turn, depends (1) whether the FWS’s action may cause “a significant degradation of some hu- man environmental factor” through a change in the phys- ical environment, and (2) 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 The FWS’s action in this case does not alter the en- vironmental status quo; it does not cause any change in the physical environment.‘ Indeed the purpose of the ac- quisition of the easement is to foreclose any change in the ‘The FONSI issued by the FWS is also consistent with FWS reg- ulations that categorically exclude from the NEPA review process [t]he acquisition of land in accordance with the Service’s proce- dures, 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) (4/30/84). 33a physical environment of a particular wetland site. As the Court observed in National Association of Property Own- ers, NEPA does not require a federal agency to prepare an EIS whenever a reservoir is not built. Under State of Louisiana v. Lee, the plaintiffs’ burden in this case is to allege facts which, if true, would show that the FWS’s action may cause ‘‘a significant degra- dation 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 conver- sation easement, for the express purpose of preserving the land in its then-existing natural state, there is no reason- able possibility that such action may cause “a significant degradation of some human environmental factor” through a change in the physical environment. Absence of Causal Connection 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 physical environment cause by those ac- tions. The alleged “effects” of the FWS’s action in this case are the “elimination” of a potential water supply-the Waters Bluff Reservoir-and the risk that the area served by the SRA will suffer water shortages in the future if the reservoir is not built. The plaintiffs allege that [a]lequisition of the Club easement and placement of that easement in the refuge system immediately in- jured the interests of the SRA and others of TWCA's members by eliminating the Waters Bluff Reservoir and setting in motion the effects that followed the elimination of that water supply. The harmful effect that the plaintiffs claim the FWS's action will have on the environment 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 initiate or permit development of natural resources. This case poses the novel question of whether NEPA re- quires consideration of the effects of federal actions when the effects of those actions are to foreclose development or use of some natural resource. The answer to this ques- tion is that NEPA does not require a federal agency to consider such effects since those effects result from what the federal action prohibits third parties from doing, arid not from any ‘‘changes in the physical environment caused by the federal action’’ itself. 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 prop- | osition that a change in the use of water resources caused by federal action requires the preparation ef an EIS. In Andrus, the Department of the Interior decided to imple- ment a program of marketing substantial amounts of water for industrial uses from two existing reservoirs. The di- version of water resources affected both the prospects of future industrial development and the amount of water available for irrigation downstream 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. Jd. at 851-52. Andrus can be readily distin- guished from this case on the following basis. In Andrus, the diversion of existing water supplies from two existing reservoirs had the effect of altering the amount of water available to agricultural users in order to allocate additional water resources for industrial users. The federal action in Andrus clearly had an effect that changed the physical environment. In this case, there is no diversion of any existing water resources, and there is no change in the physical environment as a result of the ac- quisition of the easement by the FWS. 35a The other cases cited by the plaintiffs for the proposition that federal actions that may create ‘‘water-supply prob- lems” always require the preparation of an EIS all concern the potential effects that commercial or industrial devel- opment may have upon water. supplies. See e.g. City of Davis v. Coleman 521 F.2d. 661 (9th Cir.1975). Yet com- mercial or industrial development can not take place ab- sent some change in the physical environment. In Coleman, the federal action at issue was the proposed construction of a freeway interchange. 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 development which the interchange will make possible may adversely affect the quality and quantity of the city water supply because of increased use and the danger of con- tamination by industrial wastes’’. Jd. at 671. Commercial or industrial development and preservation are not syn- onymous under NEPA, and the FWS’s acquisition of a conservation easement does not pose a “‘water-supply prob- lem” that requires the preparation of an EIS.°® 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 Metro- politan Edison, the Nuclear Regulatory Commission pre- pared an EIS concerning the relicensing of a nuclear- powered electrical generating station. Although the Com- mission considered the risk of a nuclear accident in its EIS, it decided not to 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 ‘ Another case cited by the plaintiffs, Goodman Group, Inc. v. Dish- room, 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. Jd. at 185-86. 36a physical world. ... We believe that the element of risk lengthens the causal chain beyond the reach of NEPA. Metropolitan Edison, 460 U.S. at 775, 103 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 procedures 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 res- ervoir also creates a risk that SRA will face water short- ages 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 future 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 acquisition of the ease- ment. 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”. Jd. The Court finds that the effects of the FWS’s action upon the plaintiffs are * No 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 De- partment is paid the fair market value of the land, (2) the Department acquires other lands by exchange, or (3) such land is transferred pur- suant 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. § 668dd(aX3). _ 37a not within the scope of NEPA and can not form the basis of a NEPA claim. Plaintiffs’ Claims are Contrary to NEPA’s Purpose The FWS’s EA reveals that the FWS adequately con- sidered 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 plaintiffs 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’ disagreement with the FWS is more akin to a political dispute over policy choices than a legal dispute over compliance with the procedural! re- quirements of NEPA. Cf Foundation on Economic Trends v. Lyng, 817 F.2d 882, 886 (D.C.Cir.1987). “Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. . [t]he polit- ical process, and not NEPA, provides 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 prohibit the transfer of certain property from a private party to the United States pursuant to an agreement to settle a law- suit. The city desired to develop the property in accordance ’ Legislation that would withdraw the Club Easement from the Ref- uge System is now pending before the Marine and Fisheries Committee in the House of Representatives. 38a with a local development plan. If 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 ttransfer which would have ren- dered the land useless as & Wildlife refuge. Jd. at 1215. The Court’s discussion of the city’s claim has particular relevance to this case. The federal government is trying to discharge its ob- ligations under a high priority federal program to pro- tect endangered 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 jit believes does not serve the City’s interests, which iit has defined as development in strict accordance wit}h its [local development plan]. Id. at 1215. The Court found that the City’s NEPA claim presented “the anomalous situation in Which a municipality is trying to use federal environmental /aws as a means of protecting a plan for desired local commercial and residential devel- opment’”’. Jd. at 1221. The Court rejected the city’s NEPA claim on the grounds that ‘“{ii]t would be inconsistent with NEPA’s purposes to allow the city to use NEPA to ob- struct [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 wetlands of 39a the Nation through acquisition [of wetlands] in fee, easements or other interests ... Emergency Wetlands Resources Act of 1986, 16 U.S.C. § 3901(b)\(2). This case also presents the anomalous circumstance of a governmental entity attempting to use the provisions of NEPA to protect its plan to develop natural resources in a manner that will unquestionably result in substantial changes in the physical environment. To permit the plaintiffs 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 To have standing to challenge the FWS’s action under NEPA, the plaintiffs must show that they have been ad- versely affected by the FWS’s action within the meaning of NEPA. See Lujan v. National Wildlife Federation, — U.S. , 110 S.Ct. 3177, 3185-86, 111 L.Ed.2d 695 (1990). In other words, the plaintiffs must establish that the injury of which they complain ‘‘falls within the zone of interests sought to be protected by the statutory pro- vision whose violation forms the legal basis of [the] com- plaint”. Jd. 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 res- ervoir is unquestionably an interest that is subject to the provisions of NEPA, but it is not an interest that NEPA was designed to protect. Summary The Court finds that the FWS’s decision not to prepare an EIS concerning the easement acquisition was not ar- se 40a bitrary and capricious; the FWS adequately considered all relevant factors, and there is no clear error in its judg- ment. Marsh v. Oregon Natural Resources Council, 490 U.S. at __, 109 S.Ct. at 1861. The FONSI issued by the FWS is correct since there is “‘no reasonable possibility’’ that the FWS’s action will cause ‘‘a significant degradation of some human environmental factor” through a change in the physical environment. State of Louisiana v. Lee, 758 F.2d 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, Metropolitan Edison, 460 U.S. at 773, 103 S.Ct. at 1561; 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 Con- gress 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 de- signed to protect. IV. ADEQUACY OF THE EA 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 further consid- eration. The Court has carefully reviewed the EA in light of the administrative record and the applicable law and finds that the EA is adequate. Preparation of an EA is the proper procedure for an agency to utilize in determining whether to prepare an EIS concerning a proposed action. Vieux Carre Property Owners, Residents and Associates, Inc. v. Pierce, 719 F.2d 1272, 1281 (5th Cir.1983); 40 C.F.R. § 1508.9(aX1). Federal agencies have a duty to prepare a reviewable administra- tive record, and a court must review the reasonableness 4la of the agency’s determination on the basis of the infor- mation available to the agency at the time the EA was prepared. Citizen Advocates for Responsible Expansion, Inc. v. 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 environ- mental consequences of a proposed action before such ac- tion is undertaken. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, __, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989). As long as an agency adequately con- siders 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 pro- hibits uninformed—rather than unwise—agency action.” Jd. Consideration of the Need for Action In this case, the FWS selected the land owned by the Club for possible acquisition 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 par- ticularly 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 compiling the Concept Plan and Land Protection Plan. (AR. C, p. 3). The FWS’s reliance on the survey data to evaluate the importance of acquiring the conservation ease- ment on the Club land was clearly reasonable. Consideration of Water-Supply Issues Both the survey and the Concept Plan identified planned reservoir projects as a principal source of conflict with preservation of wetland sites in eastern Texas. (AR. B, p. 133). The survey specifically excluded wetlands sites that might conflict with planned reservoir projects. (AR. A-II). In evaluating the extent of the conflict between wetlands sites and planned reservoir projects, the FWS relied upon the 1984 Texas Water Plan developed by the Texas De- partment of Water Resources. (AR. H). The FWS’s reli- 42a ance on the Water Plan’s data and projections concerning future reservoir projects and water supplies was reason- able in light of the fact that the Water Plan is ‘designed to be a state-wide comprehensive estimation of the future water 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 res- ervoir 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 conclusion that Waters Bluff is a feasible and necessary reservoir project. (AR. D, p. 18, 50; AR. 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 considered the available data on future water supply needs of the Sabine River Basin contained in both the Water Plan and SRA’s 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 reaching its conclusion. The plaintiffs merely disagree with the FWS’s interpretation of the avail- able 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 review of the water-supply issues raised by SRA was inadequate or that the FWS’s conclusion was unreasonable, arbitrary or capricious. Consideratien of Alternatives 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 48a preserve the Club’s land, (2) establishing a refuge in con- junction with the Waters Bluff project, (3) acquiring the Club’s land in fee simple, and (4) acquiring a less-than-fee- simple interest in the Club’s land. (AR. D, p. 20-25). SRA faults the FWS for not considering the acquisition of high priority wetland habitat outside the area of SRA’s Waters Bluff project and for failing to adequately consider estab- lishing a refuge in conjunction with the Waters Bluff pro)- ect. Once an agency adequately addresses alternatives to its proposed action, ‘‘the decision of which alternative to fol- low is within the agency’s discretion”. South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005, 1017 (5th Cir.1980). “[T]he range of alternatives that reasonably 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 environ- mental assessment, it makes little sense to fault an agency for failing to consider “more environmentally sound alter- natives to a project which it has (properly]- determined, through its decision not to file an impact statement, will have no significant environmental effects anyway . Id.; see also City of New York v. United States Dept. of Trans- portation, 715 F.2d 732, 744 (2nd Cir.1983), cert. den., 465 U.S. 1055, 104 S.Ct. 1408, 79 L.Ed.2d 730 (1984). Since the FONSI concerning acquisition of the easement is cor- rect, the range of alternatives considered by the FWS was adequate. The FWS considered and rejected the no-action alter- native 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 irretrievable loss of the habitat. (AR. D, p. 21). Similarly, establishing a refuge in conjunction with the Waters Bluff project was rejected because that alter- ce a 44a native would not prevent destruction of the wetland hab- itat. (AR. D, p. 20-21). The FWS also concluded that any area set aside for refuge purposes would be of inferior quality. (AR. D, p. 20-21). This conclusion is supported by the report issued by the Texas Parks and Wildlife De- partment which suggested that wetland sites established in conjunction with reservoir projects are of only “‘mar- ginal’’ value to waterfowl populations. (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 con- straints that made no-cost acquisitions especially attrac- tive. (AR. D, p. 23-24). The Court finds that the FWS’s consideration of these alternative courses of action was adequate and reasonable. Consultation with Other Agencies The plaintiffs contend that the FWS failed to properly consult with other federal and state agencies during the NEPA review process. This claim is not supported by the evidence in the record, and it is based on the erroneous assumption that NEPA mandates inter-agency consultation before a draft EA is prepared. Although the applicable regulations do not address the timing of inter-agency consultation 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 comments of appropriate State and local agen- cies. 40 C.F.R. § 1503.1(aX1, 2). The regulations further provide that an agency shall respond to such comments. Id. at § 1503.4(a). There is nothing in NEPA or the ap- plicable regulations to suggest that the timing of consul- tations should be any different when an agency prepared a draft EA as opposed to a draft EIS. The record indicates that the FWS circulated its draft EA to all appropriate federal and state agencies. (AR. D, 45a p. 49-50; AR. G- 84). The FWS then received a number of written comments both critical and supportive of its proposed action. (AR. K). The FWS also received oral and written comments during the public meeting concerning the easement. (AR. I). In response to these comments, the FWS revised its draft EA to include a discussion of the alleged controversial aspects of its acquisition of the ease- ment. (AR. P, p. iii; AR. D, p. iii). While the draft EA contained only a brief reference to SRA’s Waters Bluff project, the final EA contains a responsive discussion of the water-supply issues raised by SRA. (AR. P, p. 9; AR. D, p. 12-16). The FWS also revised the EA to address the alternative of establishing a refuge in conjunction with the Waters Bluff project. (AR, P, p. 11-12; AR. D, p. 20). Thus, the record demonstrates that the FWS considered and responded to the comments raised in opposition to the easement. The FWS’s action was consistent with the re- quirement that an agency involve the public 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 under- mine the adequacy of the FWS’s NEPA review. 30-Day Comment Period A related issue raised by the plaintiffs is the FWS’s alleged failure to provide a 30-day comment period after the FONSI was issued. See 40 C.F.R. § 1501.4(e)(2). This regulation mandates such an additional comment period if the agency’s proposed action (1) is, or is closely similar * The case cited by the plaintiffs in support of their contention :s readily distinguishable. In Simmans v. 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. | | , 46a to, action that “normally requires’ the preparation of an EIS under regulations adopted by the agency, or (2) ‘‘the nature of the action is one without precedent’. § 1501.4(e2\i-ii). Whether the acquisition of the conservation easement is or is similar to an action that ‘normally requires’ the preparation of an EIS under Department of Interior reg- ulations is the subject of somewhat conflicting provisions in those regulations. On the one hand, the regulations provide that an FWS proposal to establish “new refuges, fish hatcheries, or research stations and major additions to existing installations” will ‘‘normally require the prep- aration of an EIS“. Department of the Interior Depart- ment Manual, 516 DM 6, App. 1, 1.3A(1). The regulations further provide that if an EIS is not prepared for such proposals, “‘an EA will be prepared and handled in ac- cordance with § 1501.4(e\2)**. Jd. at 1.8B. On the other hand, the regulations categorically exclude from the NEPA process “‘acquisition of land in accordance with the Ser- vice’s procedures, when 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”. Jd. 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 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 stations and major additions to existing installations’’ involves more than the mere ac- quisition of a property interest such as a conservation easement. This interpretation of section 1.3A(1) is thus fully consistent with section 1.4A(4)’s categorical exclusion 47a 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 ac- quisition does not undermine this conclusion because the regulations provide that an EA “‘may be prepared on any action [even those covered by a categorical exclusion] at any time in order to assist planning and decision-making’’. Id. at 516 DM 3.2; see also 40 C.F.R. § 1508.4. Accord- ingly, the FWS’s action in this case was not one that would normally require the preparation of an EIS under regu- lations 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 action is one without prece- dent”. 40 C.F.R. 1501.4(eX2Xii). Whether the “‘nature” of the FWS’s action is ‘“‘without precedent” is largely a func- tion 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 understanding of the term “‘nature’’—the essential 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 conservation ease- ment under circumstances that pose a conflict with another party’s desired uses of the same land. The ‘‘nature”’ of the FWS’s action is not “without precedent” since the FWS has heretofore acquired similar easements under cir- cumstances that also posed a conflict with other potential uses of the same land. (AR. D, p, iii). Because the FWS’s acion was not without precedent, no additional comment period under 40 C.F.R. § 1501.4(eX2) was required. 48a Finally, even if the Court were to find that the 30-day comment period applied to the FONSI in this case, the plaintiffs have failed to identify any additional relevant information that they or any other party would have pro- vided the FWS. Accordingly, there is nothing to suggest that the absence of the additional comment period deprived the FWS of relevant information such as would undermine the reasonableness or adequacy of the FWS’s NEPA re- view process. Consideration of Controversy, Precedent and Cumula- tive Effects The plaintiffs also contend that the FWS failed to con- sider the extent of the controversy surrounding its action, the precedential nature of the action, and 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 determining “‘intensity’’ are the degree to which the effects on the quality of the human environment are likely to be highly controversial’’, “the degree to which the action may establish a precedent for future actions with significant effects”, and whether the action is related to other actions with individually insignificant but cumu- latively significant impacts”. Jd. at § 1508.27(b\4, 6, 7). The only “‘effects” or “impa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0749%3A1. Public record. Not legal advice.