Jump to Navigation
Jump to Content

Oklahoma Wildlife Fed'n v. Corps of Eng'rs

ELR Citation: 18 ELR 21357
Nos. No. 87-C-237-B, 681 F. Supp. 1470/(N.D. Okla., 01/05/1988)

The court holds that the Army Corps of Engineers properly found no significant impact on the quality of the environment from a water transfer project, based on proposed mitigation measures. The Corps issued a permit to the North Texas Municipal Water District and the Greater Texas Utility Authority to remove water through a new pipeline from Lake Texoma for municipal and industrial uses. The court first holds that there was no need to make the finding of no significant impact (FONSI) available for public review for 30 days, because the transfer of water between two river basins is not unprecedented. The court holds that the Corps adequately addressed the effects of the project on striped bass, the environment in the receiving water of Sister Grove Creek, diversion of organisms from one river system to another, and water quality in the receiving waters of Lake Lavon, since special permit conditions have been imposed and the administrative record shows that the Corps made a good-faith effort to consider these effects. The court holds that the Corps properly concluded that no federally listed endangered species would be adversely effected, and there is no indication that the shovelnose sturgeon, which is listed by Texas as an endangered species, will be adversely affected either. The Corps made a good-faith effort to consider the effects of the project on the Lake Texoma recreation industry, and the Corps adequately considered the alternative of water conservation efforts to reduce water consumption.

The court concludes that the use of the appropriate mitigating conditions on the permit eliminated the need for an environmental impact statement in this case. Though, as noted above, this is not an unprecedented water transfer requiring 30 days of public review of the FONSI, even if public review were required the Corps' failure to provide it has not resulted in irreparable harm and the plaintiffs are not entitled to injunctive relief based on the balance of the equities. Allowing 30 days of public comment now would not change the Corps' decision. The Corps adequately considered alternatives to the proposed project, including numerous alternate locations and the possibility of water conservation. None of the plaintiffs advanced conservation as an alternative during the environmental review process, and delayed and obscure environmental claims are disfavored.

Counsel for Plaintiff
Michael C. Turpen, Victor N. Bird, Richard Gann
Chapel, Wilkinson, Riggs & Abney
Frisco Bldg., 502 W. Sixth St., Tulsa OK 74119-1010
(918) 587-3161

Counsel for Defendant
Tony M. Graham, U.S. Attorney; Peter Bernhardt, Ass't U.S. Attorney
3600 U.S. Courthouse, 333 W. Fourth St., Tulsa OK 74103
(918) 581-7463