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Hill v. Tennessee Valley Auth.

Citation: 6 ELR 20583
No. No. 3-76-48, 419 F. Supp. 753/(E.D. Tenn., 05/25/1976)

Although finding that the habitat of the snail darter, a species designated as endangered pursuant to the Endangered Species Act of 1973 (Act), would be destroyed by construction of the Tellico Dam, the court nevertheless refuses to enjoin the project. The Department of Interior placed the snail darter on the endangered species list because the reservoir to be created by the dam would destroy a significant portion of the habitat and food supply critical to the preservation of the species. Despite TVA's efforts to locate snail darters in rivers other than the Little Tennessee, the Interior Department has refused to modify its designation. The court thus finds that enjoining the reservoir impoundment is the only alternative likely to comply with the Act. Under these circumstances, to require TVA simply to consult with Interior would be an empty gesture. As Congress has since 1966 authorized appropriations for the project, now 80 percent complete, it is not reasonable to suppose that Congress intended to halt the project by passage of the Act seven years later. Similar results have been reached in cases seeking retroactive application of NEPA to nearly completed projects. Nor are the advisory guidelines on retroactivity promulgated by the Fish and Wildlife Service binding on the court. The court distinguishes National Wildlife Federation v. Coleman, __ F.2d __, 6 ELR 20344 (5th Cir. 1976), on the ground that construction of the highway threatening the Mississippi Sandhill Crane was in the initial stage at the time of that suit. Recognizing that courts should not grudgingly administer the Act, the court nevertheless concludes that it should not be construed to bar completion of this particular project.

Counsel for Plaintiffs
W. P. Boone Dougherty
Bernstein, Dougherty & Susano
1200 Hamilton Bank Bldg.
Knoxville TN 37902
(615) 524-3038

Counsel for Defendant
Herbert F. Sanger, Jr.
Tennessee Valley Authority
Knoxville TN 37902
(615) 632-2101