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Nebraska v. Rural Electrification Admin.

Citation: 8 ELR 20789
No. Nos. CV-76-L-242, CV-78-L-90, 12 ERC 1156/(D. Neb., 10/02/1978)

The State of Nebraska and a number of national, state, and local conservation, agricultural, and environmental groups challenge the legality of the Rural Electrification Administraton's (REA's) granting of federal commitments and loan guarantees for the Missouri Basin Power Project and the Corps of Engineers' decision to issue a dredge and fill permit for construction of the Grayrocks Dam. Employing the "rule of reason" standard of review, as articulated in Sierra Club v. Froehlke, 534 F.2d 1289, 6 ELR 20448 (8th Cir. 1976), the court undertakes an evaluation of plaintiffs' central claim under the National Environmental Policy Act (NEPA) that the final environmental impact statement (EIS) on the Missouri Basin Power Project prepared by REA is inadequate. The court determines that the final EIS is deficient because it fails to describe and discuss fully the project's environmental effects. Specifically, the impact statement did not identify the project's effects on downstream trout fisheries and critical habitat for the endangered whooping crane, nor does it discuss the impacts on streamflows, water tables, and ground water resources. The EIS also failed to consider the cumulative environmental effects of the Missouri Basin Power project in conjunction with other planned projects in the area or to discuss the alternative of delaying construction until additional information regarding impacts on wildlife habitat has been obtained. Plaintiffs have not, however, carried their burden as to the additional assertion that the EIS should also have discussed the possibility of a smaller reservoir or power plant and the option of using water transfers or non-evaporative cooling systems. Plaintiffs have likewise failed to show that the refusal to hold a public hearing was improper, since that decision is left to the agency official's discretion under 40 C.F.R. § 1500.7(d) and there was considerable public involvement in this case even without a hearing. Plaintiffs are also mistaken in claiming that defendant failed to consult with other expert agencies.

Turning to the second set of issues in the case, the court concludes that REA did not consult with the Fish and Wildlife Service, as required by § 7 of the Endangered Species Act, regarding the possible project impacts on the endangered whooping crane. Nor has the agency taken action, also as required by that provision, to ensure that the Missouri Basin Power project does not jeopardize the continued existence of the whooping crane or its habitat. The court finds that any obligation placed on the REA by the Fish and Wildlife Coordination Act has been met through the comment reply process of the environmental impact statement.

In evaluating the legality of the Corps of Engineers' issuance of the dredge fill permit for the Grayrocks dam under § 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344, the court first determines that plaintiffs have not shown bad faith on the part of the Corps. The agency did fail, however, to consider a number of relevant environmental factors, including effects on fisheries and ground water and the cumulative impacts of the Missouri Basin Power project to which Grayrocks will furnish water, in conjunction with other projects in the area. In addition, although it gave adequate consideration to wetlands and alternate cooling systems, theCorps failed to fulfill its obligations under § 7 of the Endangered Species Act to consult with the Fish and Wildlife Service and to ensure that the Missouri Basin Power project does not jeopardize the continued existence or habitat of the whooping crane.

The court rules that plaintiffs are entitled to injunctive relief to the extent necessary to remedy the above violations. The REA loan guarantee commitments are therefore set aside, as is the § 404 dredge and fill permit for the Grayrocks dam and reservoir. Because the § 404 permit constitutes a federal authorization without which these latter two portions of the project could not proceed, a sufficient federal nexus exists to warrant enjoining construction on them.The absence of such a nexus as to the other portions of the Missouri Basin Power project precludes injunctive relief against nonfederally funded or guaranteed construction by nonfederal parties.

The full text of this opinion is available from ELR (47 pp. $6.00, ELR Order No. C-1159).

Counsel for Plaintiffs
Paul W. Snyder, Ass't Attorney General
2115 State Capitol, Lincoln NE 68509
(402) 471-2682

Patrick A. Parenteau
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6882

David F. Parmerlee
Redle, Yonkee & Arney
P.O. Box 6288, Sheridan WY 82801
(307) 674-7454

Counsel for Defendants
Gary Randall, Fred Disheroon, Lee Tyner
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716

Counsel for Intervenor-Defendant Electric Utilities
Edward Weinberg, Frederick L. Miller, James Pembroke
1775 Pennsylvania Ave. NW, Washington DC 2006
(202) 467-6370

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]