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Upper W. Fork River Watershed Ass'n v. Corps of Eng'rs

Citation: 6 ELR 20580
No. No. 74-140-E, 414 F. Supp. 908/8 ERC 2027/(N.D. W. Va., 01/28/1976)

On cross-motions for summary judgment, the court grants defendants' motion to dismiss this NEPA challenge to construction of the Stonewall Jackson Lake Project, a large dam for flood control, water supply, stream flow regulation and recreation on the Upper West Fork River near Brownsville, West Virginia. Contrary to plaintiff's major assertion, the project's environmental impact statement (EIS) satisfies the requirements of NEPA. First, defendants' failure to include among alternatives to the project a system of multiple small flood-control dams does not render the EIS defective, for the record shows that such a system would not be cost-effective and would not serve all four purposes of the projected dam.

Second, the EIS adequately discusses short-term use versus long-term productivity as required by NEPA. The record supports its statement that the project area is presently in gradual decline and its conclusion that the project would enhance the area's long-term recreational and water-supply potential. In balancing costs and benefits, the EIS does not underplay the costs of loss of 35 miles of free-flowing stream, of siltation of the reservoir, or of loss of minable coal reserves.

Third, EIS preparation was not flawed by defendants' failure to hold public hearings sufficiently near the project site or to circulate the draft EIS for public as well as government agency comment. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1284-85, 3 ELR 20045 (9th Cir. 1973).

Fourth, the EIS discussion of permanent commitments of resources adequately treats losses of coal and other energy resources; in any event, such resources are not permanently lost since the project is expected to last only about 100 years.

Fifth, defendants were not bound to circulate the draft EIS for comment to the West Virginia Department of Agriculture, for nothing shows it to be authorized to develop and enforce environmental standards.

Sixth, the EIS is not incomplete by reason of its failure to cite the scientific studies on which it relied; these are fully available in allied documents.

Seventh, the EIS is not misleading due to inclusion of references to a number of particular matters challenged by plaintiff, nor by its omission of certain data on downstream impacts of project stream flow management, matters of the sort at issue in Environmental Defense Fund, Inc. v. Corps of Engineers (Gillham Dam), 325 F. Supp. 728, 747-48, 1 ELR 20130 (E.D. Ark. 1971).

The project does not contravene NEPA's goals or plaintiff's Fifth and Ninth Amendment rights. Judgment is ordered for defendants.

The full text of this opinion is available from ELR (48 pp. $6.00, ELR Order No. C-1058).

Counsel for Plaintiff
La Verne Sweeney
207 West Main St.
Grafton WV 26354
(304) 265-0968

Counsel for Defendants
James Companion, U.S. Attorney
William A. Kolibash, Asst. U.S. Attorney
Federal Building
Wheeling WV 26003
(304) 232-4026

Counsel for Amici Curiae
Willis Shay
Steptoe & Johnson
Union Bank Building
Clarksburg WV 26301
(304) 624-5601

Maxwell, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]