Stow v. United States ex rel. Soil Conservation Serv.
Citation: 19 ELR 20481
No. No. Civ. 88-697L, 696 F. Supp. 857/(W.D.N.Y., 10/06/1988)
The court holds that plaintiff homeowners' challenge to construction of a flood control dam and relocation of a highway is barred by laches, and that the environmental impact statement (EIS) supporting the project is adequate under the National Environmental Policy Act (NEPA). The court first holds that plaintiffs have standing because they have alleged an injury in fact within the zone of interests protected by NEPA. Although their properties are outside the area that will benefit from the dam or be flooded if the dam fails, plaintiffs have alleged that the dam may adversely affect their water supply and cause noise and air pollution, that dam failure will put them at risk, and that the project will adversely affect area aesthetics.
The court next holds that plaintiffs' claim is barred by laches. Plaintiffs have been aware of the project since it was proposed in 1967, and have claimed that it is illegal at every stage of the administrative proceedings. However, they did not seek judicial review under NEPA until five years after the EIS was issued, seven months after the Corps of Engineers issued a permit under § 404 of the Federal Water Pollution Control Act (FWPCA), and two months after construction began. This delay was unreasonable, and the prejudice to defendants substantial. Construction is now advanced. Substantial, irreversible expenditures have been made. Land has been acquired and cleared; families have been displaced and the landscape irreversibly altered. The dam is 31 percent complete, and the highway relocation is 49 percent complete. Injunctive relief would serve neither the public interest nor NEPA's purposes, and the public interest is avoiding the economic waste of renegotiating or breaching the construction contracts outweighs any adverse environmental impacts of further construction.
The court next holds that the EIS substantially satisfies NEPA. It provides enough information to support an informed decision on highway relocation. It also demonstrates that the judgment of the Soil Conservation Service (SCS) that soil conditions would not make a dam unsafe was not arbitrary and capricious. The EIS also adequately addresses the flood protection alternative of removing fill from the creek. The court holds that the SCS complied with the Watershed Protection and Flood Prevention Act in conducting its benefit-cost analysis of the project. The Act requires a favorable benefit-cost ratio only for the overall project, not for each project component. Plaintiffs have not proved the errors they allege in the SCS' benefit-cost calculations, and NEPA does not require a formal benefit-cost analysis. Finally, the court holds that the Corps' decision to issue the FWPCA § 404 permit was not arbitrary or capricious.
Counsel for Plaintiffs
John F. Vorrasi
39 N. Goodman St., Rochester NY 14607
Counsel for Defendants
Frederick C. Emery Jr., Ass't U.S. Attorney
233 U.S. Courthouse, 100 State St., Rochester NY 14614-1365