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Concerned Residents of Buck Hill Falls v. Grant

Citation: 6 ELR 20527
No. No. 75-1360, 537 F.2d 29/(3d Cir., 06/01/1976) Partially vacated & remanded

The Court of Appeals for the Third Circuit partially vacates and remands for further proceedings a lower court decision, 5 ELR 20207, that enjoined construction of a dam in Pennsylvania pending preparation of an environmental impact statement and compliance with the Watershed Protection and Flood Prevention Act of 1954 (Watershed Act), 16 U.S.C. §§ 1001 et seq. Conceding noncompliance with the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., ELR 41009, defendants appeal only from the district court's holding that 16 U.S.C. § 1005 requires the Soil Conservation Service (SCS) to show that each dam in a multi-unit flood-control project exhibits benefits exceeding its costs.

Plaintiffs, property owners in the immediate area of the proposed dam, have standing under Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-54 (1970). Their allegation that construction will diminish their property values and impair their enjoyment of the area's aesthetic and recreational resources shows injury in fact; their interests are arguably within the protection of the Watershed Act since one of its stated purposes is to preserve "the Nation's land and water resources and the quality of the environment." 16 U.S.C. § 1001, as amended by § 201 of the Redevelopment Act of 1972. Davis v. Romney, 490 F.2d 1360, 1365 (3d Cir. 1974) (statute as a whole, not the particular provision purportedly violated, determines scope of its protection for standing purposes).

The SCS authorization of the project is not immune from judicial review by reason of the Watershed Act's requirement, 16 U.S.C. § 1002, that projects over $200,000 receive congressional approval through committee resolutions of both houses. The court rejects Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 3 ELR 20001 (8th Cir. 1972); Sierra Club v. Froehlke, 345 F. Supp. 440, 2 ELR 20307 (W.D. Wis. 1972), aff'd, 486 F.2d 946, 3 ELR 20823 (7th Cir. 1973); and other cases relied on by defendants, for all arose under the Flood Control Act of 1933, 33 U.S.C. §§ 701 et seq., under which Congress was directly responsible for individual project authorization.

Neither 16 U.S.C. § 1005(1), which requires the Secretary of Agriculture to determine that the benefits of a "plan for works of improvement" exceed its costs before permitting federal assistance in its construction, nor the SCS project evaluation manuals implementing the Watershed Act, can be read to require that every individual dam in a multi-dam watershed project must have a benefit to cost ratio of greater than one to one. See McCullough v. Redevelopment Authority of Wilkes-Barre, 522 F.2d 858, 869 (3d Cir. 1975). Since the record shows that the dam in question is part of an interrelated multi-dam unit, the SCS decision to do a single cost-benefit evaluation for the entire project was not arbitrary and capricious.

Plaintiffs also attack the propriety of the SCA use of a 3.25 percent discount rate in evaluating the project, in light of § 80 of the Water Resources Development Act, 42 U.S.C. § 1962d-17, which authorizes such a low rate only when "appropriate non-Federal interests [give] . . . satisfactory assurances to pay the required non-Federal share of project costs . . ." prior to December 31, 1969. The SCS's decision is subject to limited judicial review, for it is not wholly committed to agency discretion. Akers v. Resor, 339 F. Supp. 1375, 2 ELR 20221 (W.D. Tenn. 1972), rejected. The court will not, however, reach the merits on this issue; after criticizing the district court's ruling, it simply invites the lower court to reconsider its holding on remand.

The full text of this opinion is available from ELR (18 pp. $2.25, ELR Order No. C-1055).

Counsel for Plaintiffs
Robert J. Sugarman
Toni G. Braemer
Dechert, Price & Rhoads
3400 Centre Square West
1500 Market St.
Philadelphia PA 19102
(215) 972-3662

Counsel for Defendants
Walter Kiechel, Jr., Acting Asst. Attorney General
Edmund B. Clark
Carl Strass
Charles E. Biblowit
Justice Department
Washington DC 20530
(202) 739-8200

S. John Cottone, U.S. Attorney
John A. F. Hall, Asst. U.S. Attorney
Scranton PA 18503
(717) 344-7111

Van Dusen J., for himself, Adams & Weis, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]