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Vermont Pub. Interest Research Group v. U.S. Fish & Wildlife Serv.

Citation: 33 ELR 20062
No. No. 2:01-CV-332, (D. Vt., 09/13/2002)

The court holds that the U.S. Fish and Wildlife Service's (FWS') final supplemental environmental impact statement (FSEIS) for its program to control the population of sea lampreys in Lake Champlain and its tributaries was adequate. In addition to employing physical barriers and trapping to reduce adult lamprey migration, the FSEIS calls for the use of a lampricide, TFM, to control the sea lamprey population. Two environmental groups filed suit challenging the adequacy of the FSEIS. The court first holds that only one of the groups demonstrated all the requisite elements for standing. The court also holds that one group has standing to challenge the National Environmental Policy Act (NEPA) analysis and implementation of the sea lamprey control program as a whole because although the group focuses on a particular tributary of Lake Champlain to demonstrate how the program will injure them, the site-specific plan for that tributary is based in large part on analysis of environmental and public health impacts of the program as a whole. The court holds that the second group lacked standing because that group's organizational standing depended on the individual standing of a member who failed to establish a sufficient injury-in-fact. In addition, the court denies the FWS' motion to strike extra-record exhibits submitted by the group concerning dioxin contamination and a 2001 aquatic nuisance control permit for the creek. Although the group did not raise their concerns about dioxin during the NEPA process, NEPA does not require issue exhaustion. However, the court holds that other extra-record exhibits submitted by the group were not considered because they are not necessary to address any information gaps in the record. On the merits, the court holds that the FWS' FSEIS was adequate. The FWS took a requisite "hard look" at certain direct, indirect, and cumulative impacts of the program on mudpuppies and threatened and endangered mussel species that inhabit some of the tributaries proposed for treatment. Although there is always room for additional consideration of most potential environmental impacts, NEPA does not require the kind of exhaustive review that the group would prefer. Similarly, on the issue of dioxin contaminants, the court holds that the FWS undertook a fully informed analysis of the potential environmental consequences and disclosed this information to the public. The court then holds that the FWS' discussion of mitigation is also reasonably complete. NEPA does not require that a mitigation plan be fully developed prior to initiation of TFM treatments. Further, the court holds that in light of the clear congressional directive to the FWS to control sea lampreys in Lake Champlain and the consideration of nontarget impacts in the selection of potential alternatives, the purpose and need statement included in the FSEIS is not so narrow as to be unreasonable. Lastly, the court holds that the FSEIS sufficiently evaluates the environmental impacts on the individual tributaries to be treated with TFM. The FSEIS is programmatic, and once an agency has completed a programmatic environmental impact statement (EIS), further individual, project-specific environmental assessments or EIS are generally not necessary. Here, the screening analysis and the selection of specific sea lamprey control strategies are detailed in the site-specific analysis section of the FSEIS.

[Counsel not available.]