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Oregon Natural Resources Council v. Marsh

ELR Citation: 18 ELR 20321
Nos. No. 86-3670, 832 F.2d 1489/(9th Cir., 06/23/1987, 11/24/1987) opinion superseded

The court holds that the Corps of Engineers' supplemental environmental impact statement (SEIS) for the Elk Creek Dam project in Oregon is deficient because its wildlife mitigation plan is incomplete, it fails to take into account new information acquired since the original EIS was prepared, and fails to include a worst-case analysis in accordance with rescinded regulation 40 C.F.R. §1502.22, which remains binding because it was merely a codification of prior case law. The court first holds that the SEIS' mitigation plan for wildlife is inadequate because it contains neither a detailed analysis of mitigation measures nor an explanation of how effective those measures would be. Significant mitigation measures must be taken, even if they do not completely compensate for a project's adverse effects. The SEIS' mitigation plan for wildlife only listed general mitigation measures, and referred to "habitat manipulative techniques" without elaboration. Moreover, the listed measures were not analyzed in the SEIS nor was their effectiveness estimated. The court observes that the importance of the mitigation plan cannot be overestimated, and without it the decisionmaker cannot make an informed judgment as to the environmental impact of the project.

The court next holds that the Corps should have prepared a new SEIS taking into account new information acquired since it prepared the original EIS in 1980. A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions after release of an EIS. When new information comes to light, the agency must determine whether it presents significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. The court holds that new information obtained since 1980 is significant and probably accurate, but that the Corps failed to exercise the proper degree of care in evaluating it and failed to properly support its decision not to the supplement the EIS. The court rules in a note that although the Council on Environmental Quality has rescinded the regulation requiring worst-case analyses, 40 C.F.R. §1502.22, the rules embodied in the regulation are merely a codification of prior case law and so remain in effect. The court holds that although the SEIS disclosed the scientific uncertainty on the project's effects on turbidity, this is not enough; a worst-case analysis is also required when there are gaps in the information engendering scientific uncertainty that the agency determines to be important and when the necessary information cannot be obtained because of scientific impossibility or because the costs of obtaining it would be exorbitant. The Corps must either prepare a worst-case analysis or conduct further research on the project's effects on turbidity.

The court holds that the Corps properly omitted other previously completed dams in its EIS, since only proposed projects need be considered. However, effects of the project under consideration must be considered as they cumulate with effects from prior projects, and the court holds that the Corps did not take a hard look at the cumulative environmental impacts.

The court holds that the Corps' responses to critical comments on its draft SEIS need not necessarily be integrated into the body of the final SEIS, and may be included in a separate "comments and responses" section when, as here, the body of the final SEIS was revised in light of the comments and all issues raised in the comments were covered in the body. Moreover, the court holds that the Corps need not address impacts on the portion of the river 57 miles downstream that is designated as wild and scenic, since the Corps reasonably concluded that those impacts would be insignificant. Finally, the Corps' use of a 3 1/4 percent discount rate in the body of the SEIS, as required by the Water Resources Development Act of 1974, and a 7 1/2 percent discount rate in an appendix was not misleading, although the purpose of an environmental document might have been better served if the text had made reference to the analysis in the appendix.

[This opinion replaces the court's original opinion, at 17 ELR 21024. The opinion below appears at 16 ELR 20475. An injunction pending appeal was denied in a decision at 16 ELR 20826.]

Counsel for Plaintiffs-Appellants
Neil S. Kagan
Suite 224, 1012 SW Oak, P.O. Box 2447, Roseburg OR 97470
(503) 673-6682

Counsel for Defendants-Appellees
Dorothy R. Burakreis
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5390

Before Wallace and Norris, JJ.