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Burkey v. Ellis

Citation: 10 ELR 20305
No. No. 71-G-644-E, 483 F. Supp. 897/(N.D. Ala., 09/06/1979) Preliminary injunction issued

The court issues a permanent injunction preventing the Soil and Conservation Service (SCS) from authorizing or financing further modification of Blue-Eye Creek near Talledega, Alabama. Denying defendants' motion to dissolve a preliminary injunction issued in 1973, the court concludes that the decision to proceed with the project is arbitrary and capricious under the Administrative Procedure Act and violative of the substantive and procedural requirements of the National Environmental Policy Act (NEPA).

The first serious deficiency in the revised environmental impact statement (EIS) for the project is the inadequacy of the cost/benefit analysis. The SCS improperly computed the cost of certain components of the project in terms of 1969 dollars yet computed the benefits of the project in terms of 1975 dollars, which, because of inflation, arbitrarily skews the results in favor of proceeding with the project. In addition, the SCS assumed the life of the project to be 100 years in spite of evidence that 50 years was the longest reasonable estimate. The cost/benefit analysis is also flawed by the use of a three-and-one-quarter percent interest rate when §80 of the Water Resources Development Act requires the use of a six-and-three-eighths percent interest rate. The project may not be "grandfathered" pursuant to §80(b) of the Act since, in the court's view, the SCS had not received reasonable assurances by December 30, 1969, that the nonfederal sponsors of the project would pay their share of the project costs. Finally, plaintiffs have shown that several material project costs were omitted from the cost/benefit calculation.

The EIS is also inadequate in that it fails to disclose that the project will result in downstream flooding and erosion of stream banks. While SCS has some disagreement as to the likelihood of these effects, it is obligated under NEPA to reveal the possibility that they would occur and then to offer its reasons as to why such effects are unlikely or unacceptable. The EIS contains estimates of rainfall and flood protection benefits based on highly speculative date gathered from interviews with local residents. It provides no discussion of two alternative courses of action identified previously by the court as worthy of further study. In addition, the EIS fails to disclose that several other federal agencies oppose stream channelization projects such as this on environmental grounds. Moreover, commencement of the project would violate Alabama law because it would result in erosion of riparian land downstream. In conclusion, the court finds that the EIS violates both the substantive and procedural requirements of NEPA. Since it is clear that defendants will not be able to meet the conditions necessary to life the preliminary injunction issued earlier, the court makes it final.

Counsel for Plaintiff
Robert R. Reid Jr., Allen Poppleton
Bradley, Arant, Rose & White
2500 Brown-Marx Bldg., Birmingham AL 35203
(205) 252-4500

Counsel for Defendants
J. R. Brooks, U.S. Attorney; Henry I. Frohsin, Elizabeth Todd Campbell, Ass't U.S. Attorneys
1800 5th Ave. N., Birmingham AL 35203
(205) 254-1785

George F. Wooten, Clark Carpenter
Dixon, Wooten, Boyett, McCrary & Thornton
223 W. North St., P.O. Box 56, Talledega AL 35160
(205) 362-2394