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Texas Comm. on Natural Resources v. Marsh

Citation: 14 ELR 20650
No. No. 83-2145, 736 F.2d 262/21 ERC 1323/(5th Cir., 07/16/1984)

The court holds that the supplementary environmental impact statement (SEIS) prepared by the Corps of Engineers for the Cooper Lake and Channels project in Texas complies with the requirements of the National Environmental Policy Act (NEPA) and the Fish and Wildlife Coordination Act (FWCA) and that the district court exceeded its authority in ordering the Corps to rewrite the SEIS according to the court's detailed instructions. The court notes that NEPA imposes essentially procedural requirements and summarizes its criteria for review of an environmental impact statement (EIS). After holding in a footnote that the district court had no authority to require the Corps to print required portions of the SEIS in the body of the SEIS rather than in an appendix, the court divides the other alleged shortcomings of the SEIS into four categories. First, the court holds that the Corps violated neither NEPA nor the FWCA by refusing to adopt a fish population and habitat loss mitigation plan suggested by the Fish and Wildlife Service (FWS). Though there is no private right of action under the FWCA, NEPA regulations require compliance with the FWCA, and a court may review that compliance in a NEPA action. The Corps seriously considered the FWS recommendations and gave reasons for rejecting them, and that is sufficient. Second, the EIS is not defective for failing to fully discuss the possibility of combining two described alternatives to form a superficially attractive new alternative. The EIS mentions the possibility of combination, and in its separate discussions of the alternatives it points out enough weaknesses that would survive combination to justify its choice of the preferred alternative. Third, the plaintiffs had not met their burden of proving that the Corps' consideration of water supply alternatives required supplementation or was so incomplete and inaccurate as to be unreasonable or arbitrary and capricious. Fourth, the Corps' failure to use cost/benefit values recommended by regulations was not unreasonable, since the Corps presented an analysis with the recommended values in an appendix and did not clearly give insufficient weight to environmental factors.

The injunction against continuing the project is dissolved.

Counsel for Plaintiffs
Edward C. Fritz
4144 Cochran Chapel Rd., Dallas TX 75209
(214) 352-8370

Richard A. Shannon
815 Brazos St., Austin TX 78701
(512) 476-5957

Counsel for Defendant
William Cornelius, Ass't U.S. Attorney
P.O. Box 2034, 221 W. Ferguson St., Tyler TX 75710
(214) 597-8146

James M. Spears
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2756

Before TATE, JOLLY and DAVIS, Circuit Judges.