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Hughes River Watershed Conservancy v. Glickman

ELR Citation: 26 ELR 21276
Nos. 95-3056, 81 F.3d 437/42 ERC 1594/(4th Cir., 04/12/1996) Corps directed to comply with NEPA

The court holds that the U.S. Army Corps of Engineers (the Corps) violated the National Environmental Policy Act (NEPA) by failing to take a "hard look" at potential zebra-mussel infestation before granting a Federal Water Pollution Control Act §404 permit for a proposed dam, and that the Corps and the U.S. Natural Resources Conservation Service (NRCS) violated NEPA by relying on inflated estimates of the dam's economic benefit in approving the project. The court first holds that two telephone calls that the Corps' local district office made to two employees in the Corps' water quality section in response to evidence from the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service regarding zebra-mussel infestation do not constitute the hard look required by NEPA. The record provides no basis for determining whether the opinions of the employees were reasonable or whether the employees were qualified to render opinions about zebra-mussel infestation. Also, the Corps' reliance on the opinions of its water quality section employees was misplaced because the opinions do not address the expert evidence furnished to the Corps. The court orders the Corps to take a hard look at the problem of zebra-mussel infestation and to determine, based on that hard look, whether to perform a supplemental environmental impact statement (EIS).

The court next holds that the Corps and the NRCS also violated NEPA by relying on inflated estimates of the dam's economic benefit. The EIS' use of the inflated estimates impaired the two functions of the EIS: ensuring that the NRCS and the Corps take a hard look at the project's adverse environmental effects, and ensuring that members of the public have accurate information to enable them to evaluate the project. The court next holds that the Corps and NRCS did not violate the Wild & Scenic Rivers Act in approving the dam. The NRCS and the Corps considered and discussed the river's potential to be included in the National Wild and Scenic Rivers System. Moreover, the river's inclusion on the National Rivers Inventory did not impose any obligation on the NRCS and the Corps to evaluate the benefits of designating the river as part of the system as an alternative to building the dam.

Counsel for Plaintiffs
Robert G. Dreher
Sierra Club Legal Defense Fund
1625 Massachusetts Ave. NW, Ste. 702, Washington DC 20036
(202) 667-4500

Counsel for Defendant
Robert L. Klarquist
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before HALL and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.