Conservation Council of North Carolina v. Froehlke

No. C-184-D-71 (M.D.N.C. February 5, 1974)

The court enters a consent judgment providing for limitations on road facilities and conservation pool construction on the B. Everett Jordan Dam project and for the completion of a supplementary water quality environmental impact statement. The judgment also provides a further opportunity for judicial review upon completion of the supplemental EIS but prior to the creation of the lake. In the case of any such review, the party objecting to project completion will bear the burden of proof that the decision was arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with the law. For earlier opinions by this court and the Fourth Circuit Court of Appeals, see 2 ELR 20155, 2 ELR 20159, 3 ELR 20132, and 4 ELR 20062.

Counsel for Plaintiffs
Norman B. Smith
Smith, Carrington, Patterson, Follin & Curtis
704 Southeastern Bldg.
Greensboro, N.C. 27401

Claude V. Jones
1110 Central Carolina Bank Bldg.
111 Corcoran St.
Durham, N.C. 27701

Emery B. Denny, Jr.
Post Office Box 962
Chapel Hill, N.C. 27514

Counsel for Defendants
Ronald Shearin Asst. U.S. Attorney
U.S. Post Office & Courthouse Bldg.
324 West Market St.
Greensboro, N.C. 27401

[4 ELR 20529]

Gordon, J.

CONSENT JUDGEMENT

THIS CAUSE, coming on to be considered and being considered by the undersigned United States District Judge, and it appearing to the Court that the parties have agreed to settle all matters and things in controversy at the present time in this action, and that the following judgment is authorized to be entered by consent of the parties; it is now, therefore

[4 ELR 20530]

ORDERED, ADJUDGED, AND DECREED:

1. Defendants may proceed with the completion of the B. Everett Jordan Dam project (formerly known as New Hope Dam) except as specifically provided herein and as modified in paragraph 5 hereof.

(a) All existing roads that provide access to the Haw River and the New Hope River within the project boundaries shall not be removed or closed, except that limitation of use can be made in the interest of public safety, and except as required independently by the State of North Carolina Department of Transportation.

(b) Reservoir clearing is prohibited, except (i) all commercial timber harvesting contracts heretofore entered into in the area designated as Parcel I in the Group I clearing contracts let by the Savannah District Engineer, United States Army Corps of Engineers, except for those areas upstream of the bridge on State Road 1943 over the Haw River, (ii) modified clearing may be undertaken in accordance with existing plans and specifications for the project, up to the elevation of 197 feet mean sea level in the said Parcel I, except for those areas upstream of the bridge on State Road 1943 over the Haw River, and (iii) a log boom may be installed upstream of the dam.

(d) Construction for the relocation of the road designated 2-4, running between State Roads 1715 and 1941, is prohibited.

(e) Creation of the conservation pool is prohibited; and defendants shall permitthe water to be discharged from the outlet structure of the dam at the maximum flow rate consistent with the flood protection needs of downstream areas.

2. Defendants' environmental impact statement considered and evaluated the water quality aspects of the project. In view of plaintiffs' stated concerns, defendants agree to reassess the reservoir water quality aspects of the project. This will be done as a supplement to the final environmental impact statement in accordance with the provisions of the National Environmental Policy Act and the regulations of the Corps of Engineers. The supplement will consider at least the following studies:

(a) Water quality criteria report on monitoring of the same parameters and at the same stations as set out in the publications Water Resources Research Institute Report No. 48, "Water Quality Characteristics of the New Hope and Lower Haw Rivers, July 1966 — February 1970, with Estimates of the Probable Quality of New Hope Lake" (1971) and Water Resources Research Institute Report No. 73, "Further Characterization of the Water Quality of the New Hope and Lower Haw Rivers, Including Benthic Macro-invertebrate Diversity and Trace Metal Analyses" (1972), together with monitoring solids and nutrients moving on the stream bed below the water column in flood loads (to the extent practicable) as well as normal flows at these same stations, and with monitoring heavy metal concentrations in fish life;

(b) Records of heights and durations of all floods impounded behind the dam, and stream flows below the dam;

(c) Report on the observed effects of operating the project for flood control purposes upon forests, other plant life, fish, birds, mammals, mosquitos and other vectors, other animal life, and silt deposits and sediment, above and below the dam.

3. The data for the studies referred to in paragraph 2 shall be collected until March 1, 1975. The draft of the supplement to the final environmental impact statement referred to in paragraph 2 shall be filed with the Council on Environmental Quality when completed at a date estimated to be October 1, 1975. There will be a 45 day review and comment period after publication of a notice of the draft of the supplement to the environmental impact statement by the Council on Environmental Quality in the Federal Register. The waiting periods specified in sec. 1500.11(b) of the CEQ Guidelines shall not apply. The final supplement to the environmental impact statement shall be filed with the Council on Environmental Quality when completed at a date estimated to be January 2, 1976. Copies of the draft of the supplement to the environmental impact statement, and the final supplement to the environmental impact statement shall be distributed to the parties to this action upon the filing with CEQ.

4. At any time after compliance with the provisions of paragraphs 2 and 3 hereof, defendants may file with the Court and serve upon all parties to this action a notice of their decision to create the B. Everett Jordan Lake (permanent conservation pool). Any party who opposes this decision must file a response to this notice within 30 days after service, or be forever barred. The response must state specifically the factual and legal grounds for objection with detailed references to relevant documentation or affidavits, if the grounds or objection are not contained in existing documents. If any response is filed, the burden shall be upon the respondent to show that the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

5. If no response opposing the notice of the decision to create the B. Everett Jordan Lake is filed within the period provided by paragraph 4, all prohibitions of paragraph 1 shall terminate. If a response opposing the notice is filed, the prohibitions contained in paragraph 1 hereof shall terminate 120 days after the filing of the notice to create the B. Everett Jordan Lake, unless otherwise ordered by the Court.

6. Defendants, and the State of North Carolina with the authorization of defendants, if otherwise by law, may, but are not required to, construct additional recreational sites within the boundaries of the B. Everett Jordan Dam project, for temporary or permanent usage unrelated to flat water recreation, including, but not being limited to, trails, roads for access to the Haw River and the New Hope River. Defendants may, if otherwise authorized by law, make available to the State of North Carolina on a short term and cancelable lease basis, all lands that are unimproved and in a natural state within the B. Everett Jordan project boundaries, for purposes of maintaining a wildlife management or refuge area.

7. The Court retains jurisdiction over this action to enter such other and further orders as may be appropriate. The entry of this order is without prejudice to the claims asserted by the plaintiffs-intervenors City of Durham and Town of Chapel Hill.

By entering this order the Court directs the Clerk of this Court to set the case of for a hearing 45 days after filing of the notice by defendants of their decision to create the B. Everett Jordan Lake. The hearing shall take precedence over all other pending civil actions, and the Court agrees to expedite the hearing.