Cape Henry Bird Club v. Laird

No. 73-1606 (4th Cir. September 18, 1973)

The court affirms a lower court ruling that the Corps of Engineers can proceed with the construction of a dam authorized under the Flood Control Act of 1946 without meeting the NEPA costbenefit ratio, since the project meets the cost-benefit criteria specified for the Flood Control Act by Congress. The Federal Water Pollution Control Act Amendments of 1972 do not apply to the dam since it is neither in the planning stage nor before Congress for authorization. But since NEPA does apply to the project, the district court was correct in ordering a supplementary impact statement which was to include the EPA Administrator's views that the Amendments were applicable and that no value for water quality storage could be assigned as a benefit in the dam project. For the district court opinion see 3 ELR 20571.

Counsel for Plaintiffs
Gladys Kessler
Berlin, Roisman & Kessler
1712 N Street, N.W.
Washington, D.C. 20036

Counsel for Defendants
Dirk D. Snel
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530

Paul R. Thompson, Jr. Asst. U.S. Attorney
P.O. Box 1709
Roanoke, Virginia 24008

Erwin S. Solomon
Commonwealth Attorney
Hot Springs, Virginia 24445

William T. Wilson
Collins & Wilson
239 W. Main Street
Covington, Virginia 24426

James R. Saul Asst. City Attorney
300 City Hall
Richmond, Virginia 23219

William E. Carson City Attorney
P.O. Box 138
Covington, Virginia 24426

[3 ELR 20786]

PER CURIAM:

We believe that the district court correctly decided the issues raised in this appeal, and we affirm on the basis of the district court's opinion.

In our view, sections 1252(b)(1) and (b)(3) of the Federal Water Pollution Control Act Amendments of 1972,¹ by their very terms, [3 ELR 20787] are not applicable to this project. The dam is neither in the survey or planning stage, nor is it before Congress for authorization or construction. Those stages have long since passed.

Inasmuch as the requirements of the National Environmental Policy Act, 42 U.S.C. § 4331 et seq. are applicable to this project, the district judge quite appropriately ordered the Corp of Engineers to supplement their final Environmental Impact Statement so as to include the view of the Administrator of the Environmental Protection Agency. His view was that the 1972 Amendments were applicable and that no value for water quality storage could be assigned as a benefit in the dam project. The Environmental Impact Statement will appropriately reflect those views.

AFFIRMED.

1. 33 U.S.C.

Those sections provide that:

(b)(1) In the survey or planning of any reservoir by the Corps of Engineers, Bureau of Reclamation, or other Federal agency, consideration shall be given to inclusion of storage for regulation of streamflow, except that any such storage and water releases shall not be provided as a substitute for adequate treatment or other methods of controlling waste at the source.

(b)(3) The need for, the value of, and the impact of, storage for water quality control shall be determined by the Administrator, and his views on these matters shall be set forth in any report or presentation to Congress proposing authorization or construction of any reservoir including such storage.