Natural Resources Defense Council, Inc. v. Stamm

No. S-2663 (E.D. Cal. April 26, 1974)

The U.S. Bureau of Reclamation's environmental impact statement for the Auburn Dam portion of the Central Valley Project in California does not adequately comply with the requirements of NEPA, and the court issues a permanent injunction against further planning or construction of the Dam. The injunction is stayed for a period of 180 days, however, because of the Bureau's investment in land acquisition, the cost and seasonal magnification of any delay, and the possibility of dangerous flooding. The final EIS did not discuss several reasonable alternatives to the proposed project, including the possibility of combining levee improvement along the American River with increased releases through the existing spillways from Fulsom Dam, increased flood storage in Fulsom Reservoir, and increased reliance on weather forecasting and rainfall monitoring. Nor did the statement contain a critical analysis of projected future demand for American River water. Without such an analysis the court finds it impossible to evaluate various alternatives suggested by plaintiffs for meeting future demand without constructing the Auburn Dam. In addition, the EIS failed to consider one such alternative which deserves investigation, that of building a planned connecting canal between the Sacramento and American Rivers without the Auburn Dam. In deciding to stay the injunction, the court finds that the damage to the defendants and the general public which could result from an immediate cessation of construction outweighs plaintiffs' contention that further investment of time and money will make abandonment of the project more difficult and, therefore, increasingly unlikely. If a legally sufficient supplement to the EIS has not bee prepared and circulated for comment within 150 days, the injunction will come into full force 30 days thereafter.

Counsel for Plaintiffs
John D. Leshy
Natural Resources Defense Council, Inc.
664 Hamilton Avenue
Palo Alto, California 94301

Thomas Graff.
Environmental Defense Fund, Inc.
2728 Durant Avenue
Berkeley, California 94704

Counsel for Defendants
Dwayne Keyes U.S. Attorney
Richard W. Nichols Asst. U.S. Attorney
Federal and Courthouse Building
650 Capitol Mall
Sacramento, California 95814

Evelle J. Younger Attorney General
Gregory K. Wilkinson
Roderick Walston
Richard C. Jacobs Deputy Attorneys General
State Office Building
915 Capitol Mall
Sacramento, California 95814

[4 ELR 20463]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above entitled cause came on regularly for hearing on February 4, 1974, before the Honorable Thomas J. MacBride, Chief United States District Judge, on consolidated hearing, pursuant to Rule 65(a)(5) of the Federal Rules of Civil Procedure, of plaintiffs' application for preliminary and permanent injunctions. Plaintiffs appeared by and through their attorneys John D. Leshy and Thomas J. Graff. Defendants appeared by and through their attorney Dwayne Keyes, United States Attorney for the Eastern District of California, by Richard W. Nichols, Assistant U.S. Attorney. Defendants-Intervenors from the Folsom South service area (Stockton East Water District, et al.) appeared by and through their attorneys Neumiller & Beardslee, by Thomas J. Shephard and Robert C. Morrison, and by Richard W. Dickenson, Special Assistant to the San Joaquin County Counsel. Defendants-intervenors from the Armerican River service area (American River Flood Control District, et al.) appeared by and through their attorneys the Pacific Legal Foundation, by Ronald A. Zumbrun and Raymond M. Momboisse. Defendants-intervenors construction workers (State Building and Construction Trades Council of California, et al. appeared by and through their attorneys McCarthy, Johnson & Miller, by William R. Shephard and James E. Miller, and from time to time by Ronald A. Zumbrun and Raymond M. Momboisse. Intervenor State of California ex rel. Resources Agency and Reclamation Board appeared by and through their attorney Evelle J. Younger, Attorney General of the State of California, by Gregory K. Wilkinson, Deputy Attorney General. The State of California Water Resources Control Board was joined pursuant to the provisions of Rule 19 of the Federal Rules of Civil Procedure, and appeared by and through Evelle J. Younger, Attorney General of the State of California, by Roderick Walston and Richard C. Jacobs, Deputy Attorneys General. Evidence, both oral and documentary, having been received, and the Court having heard argument from the various parties, and the Court being fully apprised in the premises, and good cause appearing therefor, the Court now makes the following

FINDINGS OF FACT

1. Plaintiff Save the American River Association (hereinafter referred to as 'SARA") is a California unincorporated organization based in Sacramento, California which has as one of its purposes [4 ELR 20464] the preservation and protection of the environment of the American River, including the maintenance of adequate flow levels in the American River from Nimbus Dam to the confluence of the American and Sacramento Rivers. Members of SARA use and enjoy the American River for various recreational purposes. Plaintiff Natural Resources Defense Council, Inc. (hereinafter referred to as "NRDC") is a national environmental organization incorporated under the laws of the State of New York, with its principal place of buisiness in New York City, New York, and with an office in Palo Alto, California. Plaintiff Environmental Defense Fund, Inc. (hereinafter referred to as "EDF") is a national environmental organization organized under the laws of the State of New York, with its principal place of business in New York and an office in Berkeley, California. Members of NRDC and EDF use and enjoy the American River for various recreational purposes. The interests of NRDC and EDF are circumscribed and limited, for purposes of this action, by the interests of SARA.

2. Defendant Gilbert Stamm is the Commissioner of the Bureau of Reclamation, a federal bureau within the United States Department of the Interior. Defendant H. E. Horton is the acting Regional Director of the Mid-Pacific Region (formerly Region 2) of the Bureau of Reclamation, which includes, inter alia, that portion of the State of California including the entire Central Valley within its territorial jurisdiction. Defendant Rogers C. B. Morton is the Secretary of the Interior. Each of the defendants has responsibility and authority in connection with the construction and operation of the Auburn-Folsom South Unit (hereinafter referred to as "the Unit") of the Central Valley Project (hereinafter referred to as "the CVP"). The Unit was authorized by Congress in 1965, by the enactment of Public Law 89-161, Title 43 U.S.C. § 616aaa, et seq.

3. Defendants-intervenors Stockton East Water District, San Joaquin County Flood Control and Water Conservation District, Central San Joaquin Water Conservation District, North San Joaquin Water Conservation District, Galt Irrigation District, City of Stockton, City of Lodi, and California Water Service Company (hereinafter collectively referred to as the "Folsom South intervenors"), are political subdivisions, municipal corporations, and a corporation, respectively, located or having service areas within the Folsom South service area and which, on behalf of their citizens, water users and customers, have an interest in the completion of the Unit for the purpose of supplying water to the Folsom South service area for agricultural, municipal and industrial purposes.

4. Defendants-intervenors American River Flood Control District, California Central Valley Flood Control Association, County of Placer, County of El Dorado, City of Auburn, City of Roseville, Placer County Water Agency, El Dorado Irrigation District, and South Sutter Water District (hereinafter referred to as the "Pacific Legal Foundation intervenors"), are political subdivisions, municipal corporations, and a corporation located within and adjoining the immediate area of the American River and which, on behalf of their citizens, water users, members and customers, have an interest in the completion of the Unit for the purposes of water conservation, flood control, hydroelectric power, recreation and economic development.

5. Defendant-intervenor State Building and Construction Trades Council of California is non-profit organization chartered by the Building and Construction Trades Department of the AFL-CIO which, on behalf of the members of the local unions which together constitute it, has an interest in the completion of the Unit for the purpose of advancing the social and economic interests of said members. Defendant-intervenor California State Conference of Operating Engineers is a non-profit organization chartered by the International Union of Operating Engineers which, on behalf of the members of the local unions which together constitute it, has an interest in the completion of the Unit for the purpose of advancing the social and economic interests of said members.

6. The Reclamation Board of the State of California is a public entity charged under California law with various flood control duties including the erection, maintenance and protection of levees, embankments and channel rectification along the Sacramento and San Joaquin Rivers and their tributaries, including the American River. The State Water Resources Control Board (hereinafter referred to as "the SWRCB") is a public entity charged under California law with the administration of water rights and is the principal state entity with primary responsibility for the coordination and control of water quality. The California Resources Agency is the parent agency of, and through its Secretary has the power of general supervision over and is directly responsible to the Governor for, the operations of both the SWRCB and the Reclamation Board. On these bases the State of California has an interest in the completion of the Auburn Dam portion of the Unit, and an interest in the question of whether or not the Folsom South Canal portion of the Unit should be constructed.

7. In February 1971, defendants released a very brief 16 page Environmental Impact Statement (hereinafter referred to as "EIS"), on the Auburn-Folsom South project. In November 1972, defendants released their so-called final EIS. Thereafter, on December 15, 1972, plaintiffs brought this action, attacking the adequacy of the EIS and seeking to require defendants to comply fully with the National Environmental Policy Act (hereinafter referred to as "NEPA"). Defendants then extended the time for circulation of, and comment on the EIS. Lengthy comments from twenty public agencies and concerned citizens and organizations were received, and on or about August 6, 1972, defendants released a "Supplement to the Final Environmental Statement." This consisted of seven pages of new environmental impact analysis, some 400 pages of comments, and the responses of the Bureau of Reclamation to those comments. Any reference hereinafter to the EIS is intended to be a collective reference to both the EIS and the Supplement.

8. On November 12, 1973, plaintiffs filed their amended complaint herein, in three causes of action. Plaintiffs' first claim alleges that defendants' planned construction and operation of the Unit is in violation of § 5 of the Auburn-Folsom South Canal Authorizing Act [Title 43 U.S.C. § 616eee] in that defendant Morton has failed to make recommendations for the use of water in accordance with the provisions of Decision 1400 of the SWRCB (hereinafter referred to as "D-1400") which makes provision for the use of water sought to be appropriated at Auburn Dam for specified minimum flows in the American River from Nimbus Dam to the confluence of the American and Sacramento Rivers (hereinafter referred to as "the lower American River"). As more particularly set forth in paragraph 9 of these Findings of Fact, this Court has determined that it should abstain at this time from making any decision on plaintiffs' first claim.Plaintiffs' third claim alleges that defendants have completed the Lower American River Study (hereinafter referred to as "the Flow Study") referred to in the EIS, but have failed and refused to release it to the public, in violation of the Freedom of Information Act [Title 5 U.S.C. § 552]. Subsequent to the filing of plaintiffs' amended complaint and prior to the commencement of trial of this action, defendants released said Flow Study to plaintiffs and to the public, and plaintiffs dismissed their third claim.

Plaintiffs second claim alleges that the EIS, and the Supplement thereto which was issued on August 6, 1973, fail to comply with the requirements of NEPA, in that they fail to disclose the mode of operation of the Unit with respect to water flow releases into the lower American River, fail to disclose the growth inducing impacts of the water contracting and pricing policies of the Bureau of Reclamation, fail to discuss alternatives for complying with Decision 1400, fail to discuss alternative flood control measures and alternative sources of water for the Folsom South service area, and fail to update or discuss the cost-benefit ratio under which the Unit was authorized by Congress in 1965. The allegations set forth in this second claim frame the central issues now before this Court.

9. Upon completion of plaintiffs' evidence, defendants moved to dismiss plaintiffs' complaint and action pursuant to the provisions of Rule 41(b) of the Federal Rules of Civil Procedure, and the Pacific Legal Foundation intervenors moved the Court to abstain from further consideration of plaintiffs' first claim and from further consideration of plaintiffs' second claim insofar as said second claim relates to (a) the Folsom South Canal, and (b) the operation of the Unit. On February 14, 1974, the Court ruled that it would abstain from decision on plaintiffs' first claim, and on February 15, 1974, the Court ruled that it would abstain from decision on that portion of plaintiffs' second claim which relates to (a) the Folsom South Canal, and (b) the operation of the Unit.These rulings [4 ELR 20465] were incorporated in a written Order which was signed and filed by the Court on March 20, 1974, which said Order is incorporated by reference thereto as though the same were fully set forth herein.

10. The suit concerns the Auburn-Folsom South Unit of the Central Valley Project, a multi-purpose water reclamation project designed to provide flood control, water conservation, hydroelectric power, and recreation benefits. As presently planned, the Unit will involve construction of a 700 foot high double curvature thin arch concrete dam (the Auburn Dam) located on the North Fork of the American River adjacent to the City of Auburn, California. The dam will impound a reservoir having a capacity of 2,300,000 acre-feet and a maximum water surface elevation of 1,135 feet. The reservoir will add 250,000 acre-feet of flood control space to the American River system to be operated in conjunction with the 400,000 acre-feet of flood control space presently available in the Folsom Dam reservoir. A second feature of the Unit is a hydroelectric power plant with initial installed capacity of 300 megawatts and ultimate capacity of 750 megawatts, with the necessary electric transmission system for interconnection with the CVP power system. A third part of the project will be Sugar Pine Dam and Reservoir, and a fourth will be the County Line Dam and Reservoir. Fifth, there will be necessary diversion works, conduits and other appurtenant works for the delivery of water to projects on the Forest Hill Divide in Placer County and in the Folsom-Malby area in Sacramento and El Dorado Counties; and finally, the Unit's plans include a canal (the Folsom South Canal) extending southerly from Nimbus Dam on the American River approximately 69 miles to Lone Tree Creek in southern San Joaquin County, said canal to be sectioned into five separate "reaches", the first two of which have already been completed. The canal is for the purpose of delivering water from the American River to those portions of southern Sacramento County and San Joaquin County located within the Folsom South service area.

11. Auburn Dam is slated to be the largest concrete thin-arch dam in the world.The reservoir would inundate some 48 miles of the north and middle forks of the American River, destroying scenic canyons and inundating 10,000 acres of land. Defendants' plans for this project also include the diversion of a substantial amount of American River water from the river at a point in the Nimbus reservoir south through the Folsom South Canal for municipal, industrial and irrigation uses in the area of Sacramento and San Joaquin Counties to be served by the project (the Folsom South service area), and in the East Bay Counties of Alameda and Contra Costa. This diversion, if carried out as planned, could sharply reduce the flows in the twenty-three mile stretch of the American River from the point of diversion to the river's mouth at the Sacramento River (the so-called lower American River). Specifically, the flows could be reduced to a level of 250-500 c.f.s. from their present average flow of 2000-3000 c.f.s. These plans for the building and operation of the dam and the canal give rise to this litigation.

12. Before the project was authorized by Congress, the Bureau of Reclamation had, starting in 1959, made several applications to the SWRCB for permits to appropriate American River water for the unit. The Bureau's applications were vigorously contested by various interests, including plaintiff Save the American River Association. After hearings in 1967, the State Board issued its Decision 1356 in 1970, which granted permits to the Bureau, subject to a specific reservation of continuing jurisdiction by the Board to formulate terms and conditions to protect and enhance fishery and recreational values in the lower American River.

13. Thereafter, in 1971, several days of hearings were held on the question of appropriate terms and conditions to protect recreational and fishery interests in the lower American River. As a result of those hearings, the State Board issued D-1400 in April 1972, which placed several conditions on the Bureau permits, including the maintenance of minimum flows in the lower American ranging from 1250 to 1500 c.f.s. in normal water years. Compliance with D-1400 would require 981,000 acre-feet (hereinafter referred to as "AF") of water in normal water years, and somewhat less in critically dry water years. D-1400 is not applicable to water rights granted to the Bureau of Reclamation in connection with Folsom Dam, but is a condition appended by the SWRCB to the Bureau's permits to appropriate water from Auburn Dam. The Federal Government has announced its intention not to comply with D-1400.

14. The Court finds that neither the EIS nor the EIS Supplement contains any substantial discussion of either the water contracting policies of the Bureau of Reclamation, or the cost-benefit ratio discussed in the feasibility studies presented to Congress in 1965, but finds further that these are economic, rather than environmental, considerations and, as such, need not be discussed in an EIS.

15. What remains at issue is the adequacy of the EIS insofar as it deals with the Auburn Dam and reservoir. Plaintiffs' evidence of defendants' non-compliance with NEPA is directed primarily toward the "no-action alternative," or the alternative of not building the Auburn Dam at all. Within this framework, plaintiffs' evidencedealt with two main areas; namely, alternatives to the construction and operation of the Auburn Dam (a) for the purpose of controlling large floods in the American River, and (b) for the purpose of providing water supply for municipal, industrial, irrigation, fishery, and recreational uses.

16. Consideration of both of these subjects must start with a consideration of the Folsom Dam and reservoir. The Folsom reservoir is an existing feature of the Central Valley Project, authorized by the American River Basin Development Act of 1949 (P.L. 356, 63 Stat. 852) and completed in 1956. Folsom Dam has a normal storage capacity of 1,010,000 acre-feet supplemented by a so-called "surcharge" storage capacity of 110,000 acre-feet and a firm annual yield of approximately 1,373,000 acre-feet, The proposed Auburn Dam is planned to be immediately upstream from the Folsom reservoir on the north and middle forks of the American River.

17.In justifying the need for Auburn Dam for flood control purposes, the Bureau looks at the concept of the "standard project flood" and argues that Folsom Dam alone could not control such a flood. The "standard project flood" is defined in the EIS as "that flood which would occur as a result of the most severe combination of meteorological and hydrological conditions of the hydrologic region, excluding extremely rare combinations. It would be larger than any flood known to have occurred in the Sacramento area in the past, but could reasonably be expected to occur in the future." (Environmental Impact Statement of November 13, 1972, at page 2). The standard project flood for the American River is represented to be 460,000 c.f.s. That flow would be 120,000 c.f.s. greater than the Folsom design flood, and 180,000 c.f.s. greater than the flood of 1862. It is not explained in the EIS how the standard project flood was calculated for the American River. More significantly, there is no explanation in the EIS of why the substantial additional flood control protection encompassed in the standard project flood concept is needed now, but was not needed at the time Folsom Dam was designed. Additionally, the EIS fails to state when, in relation to the time of planning Folsom Dam, the present concept of the standard project flood became a planning consideration. Finally, greater discussion is needed concerning the predicted frequency of a standard project flood. This frequency should also be discussed vis-a-vis the predicted frequency for the flood that was to be controlled by Folsom Dam as well as the predicted frequency for the flood that occurred in 1955 and the flows that occurred in 1963 and 1964.

18. The EIS lacks a critical analysis of the flood control needs on the American River for floods of less severity than the standard project flood but of greater severity than those within recorded history. Such analysis is needed to realistically evaluate alternative flood control measures for floods of less severity than a standard project flood. Obviously, if controlling flows considerable less than 460,000 c.f.s. standard project flood flows would provide reasonable flood protection on the American River, then the prospects of controlling flooding without Auburn Dam should be discussed in detail in the EIS.

19. Plaintiffs assert that certain alternatives to Auburn Dam for flood control purposes suggested by them were not discussed in the EIS and that consequently the EIS is deficient in its attempt to comply with NPEA. Specifically, plaintiffs assert that protection against the standard project flood can be obtained without the construction [4 ELR 20466] of Auburn Dam by using various combinations of methods involving (1) increased flood control storage in Folsom reservoir, (2) increased reliance upon 24-hour weather forecasting and 6-hour warning time from rainfall monitoring, (3) modification of the outlet structures of Folsom Dam, and (4) increases in the maximum operational use of the levee system downstream from Folsom Dam, i.e., releasing flows of up to 152,000 c.f.s with minor alterations to the existing levee structure, or releasing flows of up to 180,000 c.f.s. with additional levees and substantial alterations and improvements to existing levees.

20. Folsom reservoir has a total reservoir capacity of 1,010,000 acre-feet. Plaintiffs suggest increasing the flood storage reserve in Folsom Dam from its present 400,000 acre-feet to 650,000 acre-feet to receive the water volumes of a standard project flood. I find that if Folsom Dam is to be operated in this fashion by increasing the flood storage capacity, then the draw down cannot stop at 650,000 feet for flood storage. The draw must go down to a pool of 210,000 acre-feet to provide space for 800,000 acre-feet of flood water. I reject this as an unreasonable alternative. To draw the reservoir pool down to 210,000 acre-feet would excessively damage and decrease the power generation, water conservation, and recreational capability of the dam and reservoir, in that (1) the recreational water surface area would be substantially reduced; (2) the existing fish in Folsom reservoir would be concentrated into a lesser amount of water and would thereby become fished out sooner, with the result that on a permanent basis there would be fewer fish available; (3) because cold water would have to be released from Folsom Dam downstream earlier in the summer, prior to the optimum date for spawning salmon, the cold water supply would be exhausted by the time of the winter spawning season, resulting in higher mortality of new salmon and an increased incidence of trash fish; (4) the firm water conservation yield would be decreased, resulting in less water to meet irrigation and salt water intrusion needs plus a substantial loss of project revenues; and (5) the firm energy yield would be decreased, resulting in substantial loss of needed hydro-electric power plus loss of project revenues. I reject this proposal as an unreasonable alternative and will not fault the Bureau for failure to discuss it in detail in the EIS.

21. Plaintiffs have suggested that the flood control capabilities of Folsom Dam could be improved by greater reliance upon 24-hour rainfall forecasts, and 6-hour rainfall monitoring programs in the American River watershed. While this appears to be a good suggestion, even plaintiffs admit that this method alone would be insufficient for effective control of the standard project flood. Moreover, the Bureau of Reclamation already uses these flood warning techniques in its operation of Folsom Ddm. Finally, I find that weather forecasting and rainfall monitoring have been sufficiently discussed in the impact statement.

22. One method of altering the operation of Folsom Dam suggested by plaintiffs involves modifying the outlet structures by lowering, by 15 feet, the opening of each of the eight gates in the face of the dam. This would entail removing a 15 foot thickness of reinforced concrete in an area at least 50 feet by 336 feet. New gates and gate structures would need to be built into the dam, a coffer dam would have to be hung on the inside of the dam while the gate openings were being altered and other structural changes would be required to the dam structure and its operation during renovation. It would take at least 12 years before Congressional authorization for this change could be obtained and the alteration completed. I find this to be an unreasonable suggestion and will not fault the Bureau for not mentioning this alternative in its impact statement.

23. The final individual flood control alternative advanced by plaintiffs calls for substantially greater flows of water in the lower American River than are presently contemplated by the Bureau in its operation manual. Defendants contend that any sustained flows in excess of 115,000 c.f.s. would have a damaging effect upon the levees with resultant risk of flooding certain areas adjacent to the American River.They argue that without Auburn Dam a standard project flood could produce flows of 460,000 c.f.s. into the Folsom reservoir and that the best they could do in operating the dam would be to hold the outflow down the American River from the dam at from 260,000 to 280,000 c.f.s. They point out that a flow of 260,000 c.f.s. would flood all of North Sacramento, Hidden River Vista, the Sacramento industrial tract, Sierra Oaks Vista and the River Park-College tract. If the flow got up to 280,000 c.f.s. all of Sacramento would be flooded.

On the other hand, plaintiffs contend that documents previously published by the U.S. Corps of Engineers and/or the Bureau demonstrate that the downstream levees can contain sustained flows of up to 152,000 c.f.s. with no damage to the levees, provided certain minor alterations are first made to those levees. They assert that with major alterations to the levees, they could safely sustain flows up to 180,000 c.f.s.

24. I find the flood control alternative of increased releases down the American River, coupled with an improved levee system to be reasonable and deserving of detailed discussion in the EIS. The impact statement makes only general references to the alternative of raising the levees, and then dismisses the proposal without significant analysis. A number of important considerations respecting the increased flows and the raising of the levees are not addressed at all in the EIS. In particular, the 152,000 c.f.s. levee design capacity of the American River levees, while discussed in the levee design manual and the Folsom reservoir regulation manual, is not even referred to in the EIS, much less discussed in detail. The Court considers the lack of an objective detailed discussion of all aspects of the flood control alternative of increased releases coupled with an improved levee system to be in violation of NEPA.

25. Plaintiffs propose to provide American River standard project flood protection for the Sacramento metropolitan area without Auburn Dam by utilizing, in four different combinations, each of the methods hereinabove discussed in findings 20 through 24. Said combinations initially appeared as computer flood routings 29, 16, 20 and 17 set forth in figure 15 of plaintiffs' Exhibit 37. Errors were subsequently detected in plaintiffs' initial computer program, and said combinations were re-run according to two regimes; one regime adhered to criteria restricting changes in the rate of release to 10,000 c.f.s. each 2-hour period, and the other regime utilized a graduated 10,000 c.f.s. — 20,000 c.f.s. — 30,000 c.f.s. scheme of changes in rate of release per each 2-hour period, depending upon the state of the river. Defendants claim that the combinations proposed by plaintiffs are unreasonable, primarily for the reason that they do not conform to existing Bureau criteria with respect to rates of release from Folsom Dam. They also argue that the combinations proposed are unreasonable in that (1) all of the routings in both sets draw Folsom reservoir down below the minimum flood control pool into conservation storage which begins at the 610,000 acre-foot level, (2) all routings in both sets utilize surcharge space as a matter of normal operating procedure, and (3) all routings utilize surcharge space so extensively that auxiliary spillway gates must be opened for extended periods of time to avoid overtopping. These criticisms of the proposed routings should be discussed in understandable language in the EIS.

26. I find the basic concept of combining levee improvement along the American River, increased releases through existing spillways from Folsom Dam, increased flood storage in Folsom reservoir, and increased reliance on weather forecasting and rainfall monitoring, in such a way as to maximize flood control on the American River, to be sufficiently reasonable to warrant detailed objective discussion in the EIS. I have already found increased releases and an improved levee system to be a sufficiently reasonable alternative to warrant discussion in the EIS. Furthermore, I found the alternative of increased reliance on weather forecasting and rainfall monitoring to be insufficient to control flooding by itself, rather than unreasonable. Likewise, I found the alternative of increased flood storage to be unreasonable only insofar as it required a draw down of the reservoir to an unacceptable level; leaving open the question of whether or not a draw down of less magnitude might be acceptable. By combining these alternatives, there is a higher probability of containing the standard project flood, or a flood less than a standard project flood but greater than any flood in recorded history, in an acceptable manner, than would be the case with any single alternative standing alone. The alternative of combining these alternatives is not discussed at all in the EIS. I find the EIS to be inadequate in that regard.

27. Defendants claim that, over the long term, the most important need for the Auburn Dam is for purposes of conservation [4 ELR 20467] yield and for the supply of water in the Folsom South service area in the year 2020. In the EIS, that need is represented at 582,000 AF for the American River service area (which includes upstream areas at or above Folsom, and the City of Sacramento), and 875,000 AF for the Folsom South service area. These demand figures are stated in the EIS as mere conclusions, without any discussion of calculations used by the Bureau to arrive at them.

28. At trial, defendants introduced evidence suggesting that the demand figures in the EIS were reasonable. However, that evidence was not included in the EIS itself. Plaintiffs, looking to California State Department of Water Resources projections, and the Bureau's own estimates of demand at various pricing levels, suggest that the need for American River water in the year 2020 might be considerably less than the demand figures contained in the EIS.

29. Sufficient doubt has been raised concerning the accuracy of the defendants' demand figures to convince the Court that the actual demand for American River water, and the method whereby that demand was determined, should be thoroughlyand objectively discussed in the EIS. Furthermore, any substantial discrepancies which exist between the Bureau's figures and those of the Department of Water Resources should also be explained in the EIS. Plaintiffs have suggested various alternative means for meeting the demand for American River water without Auburn Dam. Without a critical analysis of the demand for that water, it is impossible to realistically evaluate those alternatives. It is manifest that the lower the demand, the greater the possibility of meeting that demand by alternative means.

30. The water pricing policy of the Bureau of Reclamation is primarily an economic, rather than an environmental subject and, as such, need be discussed in the EIS only insofar as necessary to evaluate demand in the Folsom South service area. The basic "demand" concept encompasses both economic and environmental considerations; economic in the sense that demand is ordinarily a function of price; environmental in the sense that there is a relationship between the magnitude of demand and viability of environmentally sound alternatives to meet that demand. As no price has yet been set by the Bureau for Folsom South Canal water, price/demand analysis in the EIS is appropriate for the purposes of evaluating alternatives to the project and should be included in the EIS.

31. Plaintiffs suggest that one alternative means of meeting future demand for American River water, without Auburn Dam, is to pump water out of the Sacramento River to the Folsom South service area by means of the proposed Hood-Clay connector, a canal and pumping system for pumping water back east from the Sacramento River near Hood, to the Folsom South Canal near Clay. The EIS discusses the concept of a Hood-Clay connector, but only on the assumption that Auburn Dam would be bult. Plaintiffs' suggestion is that the Hood-Clay connector can be built without Auburn Dam as a method of meeting substantially all the needs of the Folsom South service area, as well as providing for D-1400 flows down the lower American. The alternative of the Hood-Clay connector without Auburn Dam is not discussed at all in the EIS.

32. I am convinced that the impact statement should have discussed the alternative of furnishing water to the Folsom South service area by use of a Hood-Clay connector but without building Auburn Dam. Admittedly, there is a dispute between the plaintiffs and the defendants over the question of whether all of the needs of this service area can be met by means of a Hood-Clay connector without Auburn Dam, but this dispute is not set forth in the impact statement. I believe this alternative is of sufficient importance to require that its existence be made known to the responsible decisionmakers, including the Congress, so that the option of satisfying water needs in the intended service area by use of this alternative can be knowingly considered by them.

33. In its discussion of the Hood-Clay connector without Auburn Dam, the Bureau should consider the feasibility of that alternative with storage reservoirs of varying capacities in place at or near Clay or downstream from Clay.In the discussion of this alternative there should be full discussion of the amount of water, if any, that is available out of the Sacramento River below the City of Sacramento for use in the Hood-Clay Canal and in the delta if Auburn Dam is not constructed.

34. Although the Auburn-Folsom South project was authorized by Congress in 1965 (P.L. 89-161, 42 U.S.C. § 616 aaa et seq.) no major construction activities were intiated prior to January 1, 1970, the date that NEPA became effective. To date, no major excavation or construction contracts have been let for the Auburn Dam and reservoir. However, the Government has expended approximately $65,000,000 in connection with construction and preconstruction activity relating to the dam itself. In the area of the dam site, relocation of the Forest Hill Road and construction of a new Forest Hill Bridge, and access road construction to the dam site, has been completed; a diversion tunnel for the purpose of diverting waters of the American River around the dam site has been completed; various analyses of subsurface conditions have been conducted; and approximately 50% of the land acquisition is complete. In the event the dam is abandoned, it is expected that the 12-1/2 million dollars spent on land acquisition will not be lost. Furthermore, the roads and bridges constructed as part of the project should have utility apart from the dam.

35. Defendants have solicited bids for a $60,000,000 contract for work on the foundation and abutments of the Auburn Dam, and for the foundation and construction of an upstream coffer dam to protect subsequent construction of the dam itself. Once begun, it is estimated that this work will take 40 to 44 months to complete. In the first six months of this period, the work will consist mainly of foundation treatment, which would have an insignificant environmental impact. Bids will be opened on May 15, 1974. Unless said contract is awarded by said date, a delay of a full year in construction time will be necessitated, for the reason that the foundation for the coffer dam must be completed during a period of low water in the American River, which occurs during the summer months, so that construction of the coffer dam itself can be commenced the following spring. It is necessary that construction of the coffer dam be commenced in the spring of the year so that it can be completed during the summer and fall months to a height sufficient to withstand periods of high water in the American River which will occur during the succeeding winter months.

36. Plaintiffs urge that the purpose of obtaining injunctive relief here would be to preserve insofar as is possible, realistic options for the responsible decisionmakers, including the Congress. They point out that abandonment of the project is clearly one alternative, and feel that their interests in the lower American River flows might best be served if Auburn Dam were abandoned in favor of the Hood-Clay Canal. In essence, they are concerned that further investment of time, effort, and money into the project will make abandonment of the dam more difficult and, therefore, increasingly unlikely.

37. Against this concern of plaintiffs the Court must weigh the damage to the defendants and the general public which could result from an immediate injunction against construction. Construction costs are rising at a rapid rate. As more fully described in finding number 35 above, present scheduling requires that unless construction of the coffer dam foundation is commenced by June of this year, a full year of construction time will be lost by reason of the passage of the seasons. An injunction against construction would also require that experienced personnel of the Bureau of Reclamation be either terminated or transferred, with an accompanying loss of seven years of expertise which would be very difficult to regain, when the injunction is lifted. Deterioration of existing dam site facilities would occur, and additional maintenance be necessitated thereby. Further, Placer and El Dorado Counties, the area adjoining the dam site, are areas of high unemployment, dependent for partial relief therefrom upon early commencement of construction of the dam. Substantial amounts of land are now, and will remain, off the tax rolls of those counties, while not contributing to the benefits of a completed project. If the predictions for power shortage and an expanding market for agricultural products are correct, then the sooner the dam is completed the sooner the alleged power and water yield benefits will be available to meet these needs.

38. The most compelling argument against issuance of an immediate injunction in this case is the possibility that the Sacramento metropolitan area will not have standard project flood protection until Auburn Dam is completed. If the predictions for such flood are correct and should such a flood occur prior to completion of the dam, extensive property damage, and possibly loss of life, can be [4 ELR 20468] reasonably anticipated, as the flood would inundate an area in which approximately 130,000 people reside. The Court can take judicial notice of the fact that if the dam actually is needed to protect the City of Sacramento and the heavily populated areas on both sides of the lower American River from a standard project flood, then such a flood could occur during the coming winter or spring; this so, in spite of the fact that such a flood is predicted to occur only once in 250 years. That "once" could be immediately upon us. All who have lived in the Sacramento area are painfully mindful of the fact that if Folsom Dam had not bee completed by the fall of 1955 to receive that year's winter flows in the American River, millions of dollars of damage, and possibly loss of life, would have been inflicted in the Sacramento area, and possibly downstream on the Sacramento River. No less could be said concerning the 1963 and 1964 flows. If Auburn Dam is in fact needed, then there must be no delay in completing it. Timely completion may avoid disaster, much the same as timely completion of Folsom Dam prevented a catastrophe in 1955.

39. Because the defendants are in violation of the National Environmental Policy Act in the particulars set forth above, I find this to be an appropriate case for the isuuance of a permanent injunction against further planning for or construction on Auburn Dam until the Bureau complies with Sections 102(2)(C)(iii) and 102(2)(D) of the Act, and then files a satisfactory Environmental Impact Statement with this Court. The equities in this matter dictate however that the injunction should be stayed for a period of 180 days from date of entry of the Court's order based on these findings, so that planning for and construction on the dam can continue while a satisfactory supplement or amendment to the Bureau's existing Environmental Impact Statement can be prepared and circulated pursuant to the requirements of NEPA, and then filed with the Court. PROVIDED HOWEVER, that the said preparation, circulation and filing with the Court shall all take place within not more than 150 days from the entry of the injunction order to be hereafter filed based on these Findings of Fact and Conclusions of Law.

CONCLUSIONS OF LAW

1. This Court has jurisdiction to review the procedural compliance by defendants with the requirements of Title 42 U.S.C. § 4332(2)(C) and (D) [§ 102(2)(C) and (D) of NEPA], in publishing, releasing and circulating the EIS and the EIS Supplement, insofar as said review relates to the construction of Auburn Dam, to determine whether the actions of defendants in preparing and releasing said EIS and EIS Supplement were "without observance of procedure required by law", within the meaning of Title 5 U.S.C. § 706(2)(D). This Court further has jurisdiction to review said procedural compliance in publishing, releasing and circulating the EIS and the EIS Supplement, insofar as said review relates to the operation of Auburn Dam and the construction and operation of the Folsom South Canal, but for the reasons set forth in paragraph 9 of these Findings of Fact and this Court's written Order of March 20, 1974, this Court abstains from presently exercising its jurisdiction as to said matters, and as to all matters set forth in plaintiffs' first cause of action. Lathan v. Volpe (9th Cir., December 7, 1973) Nos. 72-2932 and 72-2974, page 4 of slip sheet.

2. Plaintiffs here do not directly attack the propriety of the defendants' decision to proceed with this project, i.e., it is not before the Court whether the ultimate decision to proceed with construction of the Auburn Dam is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

3. Plaintiffs have standing to maintain this action. Sierra Club v. Morton, 405 U.S. 727 (1972); SCRAP v. United States, 412 U.S. 669 (1973); National Forest Preservation Group v. Butz, 485 F.2d 408, 410 (9th Cir. 1973); Association of Northwest Steelheaders v. Corps of Engineers. 485 F.2d 67, 70 (9th Cir. 1973).

4. Defendants having prepared, filed and circulated an EIS and an EIS Supplement, the burden of proof is upon the plaintiffs to prove that said EIS and EIS Supplement are procedurally deficient, either for failure to discuss certain factual environmental effects which reasonably can be anticipated to occur from the construction of Auburn Dam or for failure to discuss reasonable alternatives to the construction of Auburn Dam; in this connection the burden is upon the plaintiffs to prove that (a) environmental effects reasonably to be expected were not discussed, and (b) the alternatives presented by plaintiffs were reasonable alternatives. Life of the Land v. Brinegar, 485 F.2d 469, 472; EDF v. Corps of Engineers, 348 F. Supp. 916, 933 (N.D. Miss. 1972).

5. The Environmental Impact Statement, and the Supplement thereto, filed by the Bureau in this matter are legally insufficient in that consideration therein of alternatives to Auburn Dam does not comply with the requirements of Sections 102(2)(C)(iii) and 102(2)(D) of NEPA, 42 U.S.C.A. §§ 4332(2)(C)(iii), 4332(2)(D). As discussed more fully in the Findings of Fact, plaintiffs have suggested several alternatives to the Auburn Dam which this Court finds to be reasonable, and defendants either have not considered them at all, or have considered them in insufficient detail in their EIS. NRDC v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972); Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C. Cir. 1971); Sierra Club v. Froehlke, 359 F. Supp. 1289, 1343 (S.D. Tex. 1973).

6. Discussion in an EIS of reasonable alternatives to proposed project must be detailed and well reasoned. Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697-98 (2nd Cir. 1972); Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109, 1128 (D.C. Cir. 1971); Environmental Defense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972); Brooks v. Volpe, 350 F. Supp. 269, 277-78, aff'd per curiam on the basis of the district court opinion, 487 F.2d 1344 (9th Cir. 1973). But see, Environmental Defense Fund, Inc. v. Armstrong, 352 F. Supp. 50, 57, aff'd, 487 F.2d 814 (9th Cir. 1973).

7. While the requirement that the full range of alternatives be discussed is strict, the search for appropriate alternatives need be neither exhaustive, nor speculative and remote. Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973); NRDC v. Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972).

8. All features of an impact statement must be written in language that is understandable to non-technical minds and yet contains enough scientific reasoning to alert specialists to particular problems within the field of their expertise. Sierra Club v. Froehlke, 359 F. Supp. 1289 (S.D. Tex. 1973).

9. Alternatives that present only partial solution to environmental problems and which may not meet all of the original project's objectives must nevertheless be discussed in the EIS. N.R.D.C. v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972); Sierra Club v. Froehlke, 359 F. Supp. 1289, 1344 (S.D. Tex. 1973).

10. Alternatives of total abandonment of a project must be discussed in the EIS. Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C. Cir. 1971).

11. A bona-fide, good faith statement of facts in an EIS is all that is required by NEPA. Disagreement among experts will not serve to invalidate an EIS, where the facts presented in the EIS represent a faithful following of the required procedures. The EIS need not achieve scientific unanimity on the desirability of proceeding with the proposed action. Life of the Land v. Brinegar (9th Cir., 1973) 485 F.2d 460, 472-473; Lathan v. Volpe (9th Cir., December 7, 1973) Nos. 72-2932 and 72-2974, slip sheet page 4.

12. NEPA does not require that an EIS discuss matters of economics, such as financial project justifications, or other non-environmental matters. Environmental Defense Fund v. Armstrong, 352 F. Supp. 50, 57 (N.D. Calif. 1972).

13. This Court has the authority to enjoin further planning of and construction on Auburn Dam until a legally sufficient Environmental Impact Statement has been prepared, circulated, and filed with the Court in accordance with the Court's order. Brooks v. Volpe, 350 F. Supp. 281, 282 (W.D. Wash. 1972), aff'd per curiam on the basis of the district court opinion, 487 F.2d 1144 (9th Cir. 1973). Further, execution of such an injunction can be stayed for a time certain to give the Bureau an opportunity to prepare, circulate and file an appropriate impact statement, where the equities warrant such a stay. Hanly v. Mitchell, 460 F.2d 640, 649 (2nd Cir. 1972); Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 880 (D. Ore. 1971); City of New York v. United States, 337 F. Supp. 150, 164 (E.D.N.Y. 1972).

Let judgment be entered accordingly.