Conservation Council of North Carolina v. Froehlke

No. 77-2598 (4th Cir. January 25, 1979)

The Fourth Circuit affirms a district court's judgment upholding the Army Corps of Engineers' decision to impound water behind the completed B. Everett Jordan Dam. In conformity with this court's remand instructions, the lower court engaged in a substantial inquiry to determine whether there had been a clear error in judgment by the agency and properly concluded, with comprehensive findings, that the Corps' decision was not arbitrary or capricious.

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

Emery B. Denny, Jr.
Haywood, Denny & Miller
200 Wachovia Bank Bldg., 201 W. Main St., Durham NC 27701
(919) 682-5747

Claude V. Jones
1310 Arnette Ave, Durham NC 27707
(919) 682-5594

Counsel for Defendants-Appellees
Larry C. Gutterridge, Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2740

Before Bryan, Field and Hall, JJ.

[9 ELR 20105]

Per Curiam:

The Congress authorized funds for a multipurpose dam, now known as the B. Everett Jordan Dam Project, for flood control, water supply, water quality control, recreation, and fish and wildlife enhancement.¹ The dam, now completed, is situated about 20 miles south of Chapel Hill, North Carolina, where the Haw and [9 ELR 20106] New Hope Rivers converge. At issue is whether the district court properly upheld the Army Corps of Engineers' decision to impound water to form a lake as part of the project.

Appellants, Conservation Council of North Carolina (CCNC) et al., assert that the decision to impound was arbitrary and capricious since it focused on the advantages of fishing, recreation, and water supply without adequately considering the mercury level and its effect upon the general use of the proposed lake. CCNC further urges that the lake would violate national policies aimed at restoring the integrity of the nation's waters and preventing further degradation of water quality.² Additionally, municipal intervenors allege that their taxpayers will sustain damages in the form of increased sewage treatment costs.

Conforming to our instructions in Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 [3 ELR 20132] (4th Cir. 1973), the district court engaged in a" 'substantial inquiry to ascertain 'whether there ha[d] been a clear error of judgment'" in the decision of the agency, here the Army Corps of Engineers. Upon an exhaustive hearing on the issues, the district court determined that the appellants' apprehensions could not prevail. The findings and conclusions of the district judge, upholding the decision of the Army Corps of Engineers to impound, are comprehensive and we affirm on his opinion. Conservation Council of North Carolina v. Froehlke, 435 F. Supp. 775 [7 ELR 20807] (M.D.N.C. 1977).

Affirmed.

1. Act of Dec. 30, 1963, Pub.L.No. 88-253, 77 Stat. 840 and H.R. Doc. No. 508, 87th Cong. 2d Sess. (1962).

2. The purpose of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. (1977) is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. at § 1251(a). The National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1970), sets forth the policy of the "Federal Government to use all practicable means . . . [to] attain the widest range of beneficial uses of the environment, without degradation, risk to health or safety, or other undesirable and unintended consequences." Id. at § 4331(b)(3).