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Hughes River Watershed Conservancy v. Johnson

ELR Citation: 29 ELR 20451
Nos. 98-2134, 165 F.3d 283/(4th Cir., 01/13/1999) Corps complied with NEPA

The court holds that the U.S. Army Corps of Engineers' and the Natural Resources Conservation Service's decision to construct a dam on the Hughes River in West Virginia complied with the National Environmental Policy Act (NEPA). In a prior decision, the court directed the agencies to take a hard look at the problem of zebra-mussel infestation resulting from the dam project and to reevaluate their estimate of the dam's recreational benefit. Environmental groups appeal a district court decision holding that the agencies complied with the Fourth Circuit's instructions. The court first holds that the agencies took a sufficient hard look at the issue of zebra-mussel infestation in conformity with the court's earlier instructions and have complied with the requirements of NEPA. The agencies' research led them to conclude that the reproduction and survival of zebra-mussels is dependent on water quality. Accordingly, the agencies decided to develop a monitoring plan in conjunction with other state and federal agencies that will include an analysis of the water quality as well as appropriate controls and precautionary measures. The record also reflects that the agencies carefully considered and responded to comments made in response to the distribution of the draft environmental impact statement (EIS). Furthermore, it was not unreasonable for the agencies to rely on a study that reached different conclusions than a later study. The agencies considered the specific concerns raised by the later study but simply disagreed and relied on their own expert's conclusion. Therefore, the agencies did not act in an arbitrary and capricious manner. The court next holds that the agencies' decision to implement the project based on their conclusion that the economic benefits outweighed the adverse environmental impacts was not arbitrary and capricious. In making their economic recreational benefits determinations, the agencies considered the total number of visitors to the project, the number of visitors who would be diverted to the project from existing facilities, the consumer surplus figure, and non-use values. By reevaluating the project and giving more detailed consideration to all of these factors, the agencies have fully complied with NEPA consistent with this court's instructions. The court last holds that the agencies' failure to reevaluate the entire project in the final supplemental EIS is not arbitrary and capricious.

[Briefs and pleadings in this litigation are digested at ELR BRIEFS & PLEADS, 66465. A prior decision in this litigation is published at 26 ELR 21276.]

Counsel for Plaintiffs
Thomas R. Michael
Michael & Kupec
228 Court St., Clarksburg WV 26301
(304) 623-6678

Counsel for Defendants
Robert H. Oakley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Niemeyer and Herlong, JJ.