11 ELR 20991 | Environmental Law Reporter | copyright © 1981 | All rights reserved


Miller v. United States

No. 80-1660 (8th Cir. July 22, 1981)

The court upholds the adequacy of an environmental impact statement (EIS) prepared by the Army Corps of Engineers for a municipal water supply facility. Pursuant to a specific congressional enactment, the Corps studied five potential dam sites and selected the Cypress Creek site as most suitable for providing the City of Conway, Arkansas with a water supply to replace a facility rendered inoperable by federal activities. The court rules that the Corps was not required to consider construction of a regional water supply facility since the congressional authorization was limited to construction of a smaller facility. The EIS need not discuss an alternate which is essentially an entirely different project.

Counsel for Appellants
H. Clay Robinson
Pryor, Robinson, Taylor & Barry
P.O Box 1584, Ft. Smith AR 72902
(501) 782-8813

Allen Gordon
Gordon & Gordon
P.O. Box 558, Morrilton AR 72110
(501) 354-0125

Counsel for Appellees
Kathryn A. Oberly
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3906

George W. Proctor, U.S. Attorney
327 U.S. Cthse., P.O. Box 1229, Little Rock AR 72203
(501) 378-5342

Before HEANEY, HENLEY and ARNOLD, Circuit Judges.

[11 ELR 20991]

PER CURIAM.

Appellants, Lewis Earl Miller, Don Scoggins and The Wilder Cemetery Association, filed a complaint requesting that appellees, United States of America and Colonel Dale K. Randels (District Engineer, Army Corps of Engineers), be enjoined from proceeding with construction of a dam on Cypress Creek in Conway County, Arkansas. Appellants' [11 ELR 20992] complaint was based on an allegedly inadequate Environmental Impact Statement (EIS) filed by the Army Corps of Engineers pursuant to the National Environmental Policy Act of 1969 § 102, 42 U.S.C. § 4332. The district court,1 in a concise and well-reasoned opinion, denied appellants' requested relief. Miller v. United States, 492 F. Supp. 956 (E.D.Ark.1980). We affirm.

Construction of the McClellan-Kerr Arkansas River Navigation System raised the Arkansas River water level and resulted in contamination of the Conway, Arkansas municipal water supply. In response, Congress passed legislation providing for

alteration at Federal expense of the municipal water supply facilities of the city of Conway, Arkansas, by the construction of water supply impoundment facilities at a location outside the flat flood plain of Cadron Creek, together with interconnecting pipeline and other appurtenant work, so that the water supply capacity of the resultant municipal facilities is approximately equivalent to that existing prior to construction of the navigation system.

Water Resources Development Act of 1974, Pub.L.No.93-251, § 10, 88 Stat. 12 (1974) (emphasis added). The Army Corps of Engineers conducted an exhaustive comparative study of five potential impoundment sites to determine which was most suitable for providing Conway a municipal water supply. After public comment, the Corps selected the Cypress Creek site. Among the sites rejected was Point Remove Creek, also located in Conway County, Arkansas.

The EIS which appellants find inadequate includes the comparative study and the Corps' reasons for selecting the Cypress Creek site. Specifically, appellants contend the Corps failed to discuss, as an alternative to constructing a municipal water supply facility, construction of a regional water supply facility at Point Remove Creek.

In preparing an EIS, an agency only need consider reasonable alternatives to the proposed action. Iowa Citizens For Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 853 (8th Cir. 1973); 40 C.F.R. § 1502.14(a), (c) (1980). Consideration of remote and speculative possibilities is not required. Farmland Preservation Association v. Goldschmidt, 611 F.2d 233, 240 (8th Cir. 1979). What is reasonable will, of course, vary with the circumstances. Piedmont Heights Civic Club v. Moreland, 637 F.2d 430, 436 (5th Cir. 1981).

The scope of the present project and the nature of the congressional authorization convince us that a regional water supply facility at Point Remove Creek is not a reasonable alternative to the Cypress Creek municipal facility. See Farmland Preservation Association v. Goldschmidt, 611 F.2d at 239; Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 834-35 (D.C.Cir.1972); Atchison, Topeka & Santa Fe Railway Co. v. Alexander, 480 F. Supp. 980, 995-98 (D.D.C.1979). We deal here with a single dam to be built for a specific and narrow purpose.2 Undoubtedly anticipating the government's potential legal obligation, Congress elected to compensate the city of Conway by authorizing construction of a substitute municipal water supply facility. Consideration of a regional water supply facility goes well beyond this. As noted by the district court, "The statement need not develop an alternative which is essentially an entirely different project," Miller v. United States, 492 F. Supp. at 963.

Finally, we note that funds sufficient to construct a regional facility had not been committed. Appellants' references to additional funding sources were general and vague, simply underscoring the remote and speculative nature of such a project.

After careful consideration of the parties' briefs and record before us, we affirm the judgment of the district court.

1. The Honorable Henry Woods, United States District Judge, Eastern District of Arkansas.

2. At oral argument counsel advised that a very substantial portion of the construction work had been performed.


11 ELR 20991 | Environmental Law Reporter | copyright © 1981 | All rights reserved