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Missouri ex rel. Ashcroft v. Corps of Eng'rs

Citation: 12 ELR 20359
No. No. 78-3092-CV-S, 526 F. Supp. 660/(W.D. Mo., 12/24/1980)

The court rules that the Corps of Engineers complied with applicable state and federal environmental laws in constructing and operating a flood control and hydroelectric dam on the Sac River in Missouri. At the outset, the court rules that it has subject matter jurisdiction under 28 U.S.C. § 1331(a) and that it is unnecessary to rule on the Corps' laches and statute of limitations defenses. Turning to the substantive claims, the court holds that the Corps' installation of a larger hydroelectric generator than originally recommended to Congress did not violate the Flood Control Act of 1954 since the Corps has authority under that Act to modify flood control projects. The court also finds that the environmental impact statement (EIS) for the project adequately discussed increased erosion, adverse effects on downstream water quality, changes in fish populations, and adverse effects on birds and wildlife caused by operation of the dam. The EIS is not inadequate for failing (1) to discuss adverse downstream environmental impacts, (2) to estimate long-term losses to agricultural land, or (3) to consider plaintiffs' proposal to run the generator at less than peak capacity. Finally, the court rules that the Corps was not arbitrary and capricious in selecting the alternative finally chosen since the methods it used in preparing the EIS complied with the National Environmental Policy Act (NEPA), it adequately consulted with other agencies, and it gave good faith consideration to the environmental impacts. Since the Corps fully complied with NEPA, the court rules, it has also fully complied with the Fish and Wildlife Coordination Act. The court then notes that the Corps is not subject to the Missouri Clean Water Law unless it violates the Federal Water Pollution Control Act (FWPCA). Since the project does not result in the "discharge of a pollutant" because a dam is not a point source, or cause "runoff" of a pollutant within the meaning of the FWPCA, the Corps is not required to comply with state water quality laws. Finally, the project does not constitute a nuisance because it is neither unlawful nor unreasonable.

Counsel for State Plaintiffs
Robert M. Lindholm, Ass't Attorney General
P.O. Box 899, Supreme Ct. Bldg., Jefferson City MO 65102
(314) 751-3321

Cyril M. Hendricks, General Counsel
Missouri Conservation Comm'n
P.O. Box 180, Jefferson City MO 65102
(314) 751-4115

Counsel for Landowner Plaintiffs
Joseph B. Phillips
Phillips & Phillips
P.O. Box G, Stockton MO 65785
(417) 276-4810

Counsel for Defendants
Ronald S. Reed, Jr., U.S. Attorney
549 U.S. Cthse., 811 Grand Ave., Kansas City MO 64106
(816) 374-3122

August V. Spallo, Ass't District Counsel
Kansas City Dist., Army Corps of Engineers, Attn: MRKOC
700 Federal Bldg., Kansas City MO 64106
(816) 374-3943

Counsel for Intervenor
Jay M. Galt
Looney, Nichols, Johnson & Hayes
300 The Lawyers Bldg., 219 Couch Dr., Oklahoma City OK 73102
(405) 235-7641