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Conservation Council of N.C. v. Froehlke

ELR Citation: 7 ELR 20807
Nos. No. C-184-D-71, 435 F. Supp. 775/10 ERC 1450/(M.D.N.C., 07/28/1977) Suit dismissed

The court upholds the Corps of Engineers' final decision to begin impounding water behind the B. Everett Jordan Dam in North Carolina after determining that it was not clearly erroneous. The parties agreed that the issue to be tried was whether defendants' impoundment decision was arbitrary, capricious, an abuse of agency discretion, or otherwise not in accordance with law. The court finds that this agreement accurately reflects the appropriate standard for judicial review of substantive agency decisions under the National Environmental Policy Act. The court rejects the contention that two upstream municipalities are entitled to compensation from the United States for any increase in their cost of sewage treatment caused by more stringent discharge standards resulting from the impoundment, and that the Corps illegally failed to take these costs into account when balancing the costs of the project against expected benefits. There is no private property right in the continued and unaltered flow of a tributary to a stream which is subject to the federal government's navigable servitude. In addition, plaintiffs have failed to carry their burden of proof on the contention that these two upstream cities will in the future be required to meet more stringent sewage treatment standards solely because of the impoundment, and the Corps did not err in refusing to examine such speculative impacts in the environmental impact statement. The court also rejects the argument that the quality of the water in the proposed impoundment will be unsuitable for its intended uses, such as water supply, recreation, and fish and wildlife conservation. The Corps' determination that the quality of the water will support these uses is consonant with the greater weight of the evidence and expert testimony and thus is not clearly erroneous. In summary, the evidence establishes that all adverse consequences and benefits from the impoundment were taken into consideration prior to the Corps' decision, and that plaintiffs have failed to show that additional tests or studies will furnish any new evidence bearing on the reasonableness of that decision. The suit is therefore dismissed.

Counsel for Plaintiffs
Norman B. Smith
Smith, Patterson, Follin, Curtis & James
704 Southeastern Bldg., Greensboro NC 27401
(919) 274-2992

Counsel for Defendants
N. Carlton Tilley, Jr., U.S. Attorney
P.O. Box 1858, Greensboro NC 27402
(919) 378-5351