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Oregon Natural Resources Council v. Marsh

ELR Citation: 16 ELR 20475
Nos. No. 85-6433-E, 628 F. Supp. 1557/24 ERC 1211/(D. Or., 03/03/1986)

The court holds that the Corps of Engineers satisfied the National Environmental Policy Act's (NENVIRONMENTAL PROCTECTION AGENCY's) requirements to take a "hard look" at the environmental consequences of a dam on the Rogue River in Oregon and was not required to consider the cumulative impacts of the project, conduct a worst case analysis, or supplement a 1980 environmental impact statement (EIS). The court first holds that the Corps need not consider the cumulative impacts of the entire Rogue River Basin Project in a single new EIS. It would be illogical to retrospectively conduct a single EIS on the entire project with two of the three dams completed. What would be logical would be to analyze the cumulative impacts of this dam when added to the two completed ones, which the Corps did in its 1980 final supplemental EIS. The court next rules that the EIS is sufficiently detailed in its description of the area affected by the proposed dam. The comment and response section of the EIS discussed the dam's proximity to a wild and scenic portion of the Rogue River, and the Corps determined as a result of its water quality studies that the project's impact on the area would be insignificant. The court holds that the EIS contained an adequate discussion of the impacts of the proposed action. The Corps conducted extensive studies on downstream turbidity, fish production, and angling and recognized the existence of conflicting viewpoints in the EIS; it was required to do no more. It also rules that the Corps' proposed mitigation measures satisfy NENVIRONMENTAL PROCTECTION AGENCY's requirements that unavoidable adverse environmental effects be mitigated to the greatest extent possible.

The court next holds that the Corps' use of a 3.25 percent discount rate in its cost-benefit analysis provided a sufficiently clear basis for choice among the alternatives. The challenged discount rate was artificially low, but the Corps did not present that as a realistic assessment of the proposed action's economic value. It also evaluated the project at the legal 7 percent rate, which indicated that the economic justification for the dam was weak. Congress had both assessments for the project before it when it made the choice to construct the dam.

The court holds that the Corps was not required to conduct a worst-case analysis. The regulations require such analysis when information crucial to a reasoned decision is unavailable; the Corps concluded, on the basis of state-of-the-art techniques, that no such scientific uncertainty existed. Even if uncertainty does exist, the EIS contains comments of individuals who contested the Corps' methods. Finally, the court holds that the Corps' decision not to prepare a new supplemental EIS was reasonable. Although two studies conducted since the 1980 EIS indicate the existence of new information concerning impacts of the project on fish populations and soils, the Corps reasonably relied on its expert who concluded that the information did not warrant a new supplement.

The court denies plaintiffs' motion for a preliminary injunction and, treating it as a final adjudication on the merits, enters a final judgment against plaintiffs on its NENVIRONMENTAL PROCTECTION AGENCY claim and dismisses without prejudice plaintiffs' claim under the Wild and Scenic Rivers Act.

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

Counsel for Defendants
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, Portland OR 97205
(503) 221-2101

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