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Friends of the Fiery Gizzard v. Farmers Home Admin.

ELR Citation: 25 ELR 20951
Nos. No. 3-94-0620, 864 F. Supp. 717/(M.D. Tenn., 10/06/1994)

The court holds that the Farmers Home Administration's (FmHA's) finding of no significant impact (FONSI) under the National Environmental Policy Act (NEPA) for a project to construct a dam and water treatment plant to provide a long-term supply of water to a city is not arbitrary and capricious. The court first holds that the existence of a significant beneficial impact alone does not trigger NEPA's requirement that an environmental impact statement (EIS) must be prepared. Applicable regulations, including 40 C.F.R. §1508.27(b)(1), provide that significant impacts, including beneficial impacts, should be considered; however, a government agency will not agree to fund a project like the one in question unless it believes there will be some beneficial impact resulting from the project. The court notes that when the only clear impact is a positive one that will have repercussions only in the city that will receive a long-term water supply, the expenditure of time and money that an EIS would involve is not merited. Neither precedent nor the language of NEPA §102(2)(C) nor common sense support the citizens group plaintiffs' contention that beneficial impacts alone, such as the provision of a water supply to a city, can trigger the EIS requirement. The court next holds that the FmHA did not act arbitrarily and capriciously in deciding that an EIS is not merited by the potential impact of the dam's impoundment on the flow rate of the creek based on the testimony of its expert. The court also holds that the FmHA did not act arbitrarily and capriciously in relying on the alternatives assessment provided by its expert in the environmental assessment (EA). This project and this site were thoroughly scrutinized by numerous local, state, and federal agencies and officials, all of which have reason to be concerned about the environment, and none of which opposed the project or the site. The court holds that none of the other issues the citizens groups raise—that the FmHA was biased in favor of a FONSI, that there was inadequate documentation of several of the conclusions reached in the EA, and that the EA failed to address several potentially significant factors such as the cost increase and the necessity to obtain a national pollutant discharge elimination system permit—are significant enough to render the FmHA's decision not to perform an EIS arbitrary and capricious. Therefore, the court holds that the citizens groups would not prevail on the merits: The court holds that the citizens groups have not established that the environment will be irreparably injured if it does not issue an injunction now. The primary potential adverse impact that the citizens groups argued might be imminent was the alteration of the flow rate of the creek water. In analyzing the public interest and the likelihood of harm to other parties if the injunction issues, the court must take into account the city's great need for a long-term water supply and the lack of viable alternatives for the project.

Counsel for Plaintiffs
Wayne E. Ramage
Farris, Warfield & Kanaday
Third National Financial Ctr., 19th Fl., Nashville TN 37219
(615) 244-5200

Counsel for Defendants
Jessalyn Hershinger
Bass, Berry & Sims
2700 First American Ctr., Nashville TN 37238
(615) 742-6200