Webster v. U.S. Dep't of Agric.

• Decision Date: 13 July 2012
• Docket Number: No. 11–1739.,11–1739.
• Citation: 685 F.3d 411
• Parties: Pat WEBSTER; Joem Webster; Elizabeth Webster; Charles Foltz; Linda Foltz; Gloria Foltz Walker; Elizabeth Webster, as Executrix for the Estate of Allaina Garrett Whetzel, Plaintiffs–Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, by and through its Agency, the Natural Resources Conservation Service; Potomac Valley Conservation District; Hardy County Commission; West Virginia State Conservation Agency, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

685 F.3d 411

Pat WEBSTER; Joem Webster; Elizabeth Webster; Charles Foltz; Linda Foltz; Gloria Foltz Walker; Elizabeth Webster, as Executrix for the Estate of Allaina Garrett Whetzel, Plaintiffs–Appellants,

v.UNITED STATES DEPARTMENT OF AGRICULTURE, by and through its Agency, the Natural Resources Conservation Service; Potomac Valley Conservation District; Hardy County Commission; West Virginia State Conservation Agency, Defendants–Appellees.

No. 11–1739.

United States Court of Appeals,Fourth Circuit.

Argued: May 16, 2012.

Decided: July 13, 2012.

ARGUED:Christopher Patrick Stroech, Shepherdstown, West Virginia, for Appellants. Mark R. Haag, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF:Silas B. Taylor, Office of the West Virginia Attorney General, Charleston, West Virginia, for Appellee West Virginia State Conservation Agency; Jessica M. Baker, Walters, Krauskopf & Baker, Moorefield, West Virginia, for Appellees Potomac Valley Conservation District and Hardy County Commission; Ignacia S. Moreno, Assistant Attorney General, Elizabeth Ann Peterson, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Appellee United States Department of Agriculture.

Before WILKINSON, GREGORY, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Judge WILKINSON and Judge GREGORY joined.

OPINION

FLOYD, Circuit Judge:

Over thirty-five years ago, the Natural Resources Conservation Service (NRCS),¹ working with local sponsors, devised a project to provide watershed protection, flood prevention, and recreation along the Lost River Subwatershed. The proposed project involved a combination of land-treatment measures and five dams and impoundments. In 1974, the NRCS issued an environmental impact statement relating to the project, and since that time, three dams and most of the land-treatment measures have been completed. After preparing a supplemental environmental impact statement in 2009, the NRCS issued a record of decision that eliminated one of the remaining dams from the project and authorized construction of the final dam for the added purpose of providing water supply. Appellants, seven individuals who allege that their land will be adversely affected by this final dam's construction, filed this action contending that the NRCS has failed to comply with the National Environmental Policy Act (NEPA). They now appeal the district court's order granting Appellees' motion for summary judgment. Because we determine that the NRCS has complied with the procedures mandated by the NEPA and taken a hard look at the project's environmental effects, we affirm.

I.

A.

The “NEPA is a procedural statute” that “sets forth a regulatory scheme for major federal actions that may significantly affect the natural environment.” Nat'l Audubon Soc'y v. Dep't of the Navy, 422 F.3d 174, 184 (4th Cir.2005). Its procedural mandates serve dual purposes. Id. They ensure that an agency planning a major federal action obtains and considers the necessary information concerning any significant environmental impacts that the action may cause. Hodges v. Abraham, 300 F.3d 432, 438 (4th Cir.2002). They also guarantee that the public has access to the relevant information about the proposed action so that it can participate in the decisionmaking process. Id.

Under the NEPA, every “federal agency contemplating a major action” must formulate an environmental impact statement (EIS) if the action could significantly affect the environment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); see also42 U.S.C. § 4332(C). An EIS must contain certain information specified by federal statute and regulations promulgated by the Council of Environmental Quality (CEQ), a governmental body created by the NEPA. Nat'l Audubon Soc'y, 422 F.3d at 184–85;Hodges, 300 F.3d at 438. This information includes “the environmental effects and impacts of the proposed action, reasonable alternatives to it, possible mitigation measures for any negative environmental impacts that will result from it, and the cumulative impacts of it combined with other past, present, or foreseeable future actions.” Nat'l Audubon Soc'y, 422 F.3d at 185 (citations omitted).

When preparing an EIS, an agency must follow procedures established by the CEQ. Id. These procedures require that an agency draft an EIS in stages. Id. The process begins with the agency publishing in the Federal Register a notice of intent to prepare and consider an EIS. 40 C.F.R. §§ 1501.7, 1508.22. Then the agency must engage in a “scoping” process designed to determine the scope of the issues to be addressed in the EIS and to identify significant issues related to the proposed action. Id. § 1501.7. During the scoping process, the agency must, among other things, invite participation and input by federal, state, and local agencies, as well as the public. Id.; see also Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1022 (10th Cir.2002). Utilizing information acquired during the scoping process, the agency is then to prepare an initial draft EIS, which it must make publicly available and circulate to other agencies for feedback. 40 C.F.R. §§ 1502.9(a), 1503.1. After doing so, the agency must draft a final EIS that addresses any comments. Id. §§ 1502.9(b), 1503.4.

Under certain circumstances, after the issuance of a final EIS, the agency may draw up a supplemental EIS. It may prepare a supplemental EIS if it determines that doing so would further the purposes of the NEPA. Id. § 1502.9(c)(2). A supplemental EIS becomes mandatory if the agency “makes substantial changes in the proposed action that are relevant to environmental concerns” or if “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts” arise. Id. § 1502.9(c)(1). The agency must prepare, circulate, and file a supplemental EIS in the same manner as draft and final EISs, except, in general, it need not undertake a scoping process. Id. § 1502.9(c)(4). But if the agency makes substantial changes to the proposed action or significant new circumstances or information bearing on the proposal or its impacts arise, the agency must revise the determinations reached in the initial scoping process. Id. § 1501.7(c).

Finally, after the agency makes a decision regarding the action, it must publish a record of decision, at which point it may then finalize its action. Nat'l Audubon Soc'y, 422 F.3d at 185. As a purely procedural statute, the NEPA “does not mandate particular results, but simply prescribes the necessary process.” Robertson, 490 U.S. at 350, 109 S.Ct. 1835. In that sense, “it does not force an agency to reach substantive, environment-friendly outcomes,” meaning that as long as the agency adequately considers a proposed project's adverse environmental effects, it may choose to pursue the project if it decides that the benefits outweigh them. Nat'l Audubon Soc'y, 422 F.3d at 184. Simply put, the “NEPA merely prohibits uninformed—rather than unwise—agency action.” Robertson, 490 U.S. at 351, 109 S.Ct. 1835.

With this regulatory framework in mind, we now address the underlying events giving rise to this appeal.

B.

In December 1944, Congress enacted the Flood Control Act of 1944, ch. 665, 58 Stat. 887, authorizing “the construction and operation of certain dam and reservoir projects.” Cent. Elec. Power Coop., Inc. v. Se. Power Admin., 338 F.3d 333, 335 (4th Cir.2003). Among the authorized projects were “works of improvement for run-off and waterflow retardation, and soil-erosion prevention” for various specified watersheds, including the Potomac River Watershed. 58 Stat. at 905–06. The dispute here involves a project on the Lost River Sub-watershed, a part of the Potomac River Watershed situated in Hardy County, West Virginia.

Pursuant to this grant of authority, the NRCS, upon application by local sponsoring organizations,² developed the “Lost River Subwatershed Project” (Project). In October 1974, after circulating a draft for comment, the NRCS issued a final EIS (1974 EIS) related to the Project. In it, the NRCS observed that the Lost River Subwatershed was incurring damage from erosion, sedimentation, and frequent floods. It also recognized the need for more recreational opportunities in the area. The NRCS thus identified three overarching purposes underlying the Project: watershed protection, flood prevention, and recreation.

Additionally, in the 1974 EIS, the NRCS analyzed six alternatives, including the alternative of no action, before settling on a plan that involved applying land-treatment measures to 94,750 acres and constructing five dams and impoundments on designated sites. Four of the dams, located on Sites 4, 10, 23, and 27, were to be single-purpose flood-retarding structures. The fifth dam, located on Site 16, was to be a multiple-purpose floodwater storage and recreation structure. The NRCS described the Project's anticipated environmental impacts and recognized that it would require relocating eleven residences. The NRCS also considered and responded to comments received by various governmental agencies.

Also in October 1974, the NRCS and the local project sponsors released a work plan for implementing the Project. They discovered, however, that local support for the Project was lacking, prompting them to suspend its implementation. In 1977, the NRCS noted in a letter that revival of the Project would primarily depend on a decision by the local sponsors to proceed. After serious flooding in 1985 caused damage along the Lost River, the project sponsors requested that the NRCS resume implementation of the Project, so it did.

In August 1989, the NRCS issued an environmental assessment (1989 EA), which is a document that an agency prepares to assist its planning and decisionmaking or to...