Hughes River Watershed Conservancy v. Glickman
| Decision Date | 12 April 1996 |
| Docket Number | No. 95-3056,95-3056 |
| Citation | 81 F.3d 437 |
| Parties | , 26 Envtl. L. Rep. 21,276 HUGHES RIVER WATERSHED CONSERVANCY, an unincorporated association; Sierra Club, a corporation; West Virginia Rivers Coalition, a corporation; Russell Richards; Wilson Lewis Davis; Jettie B. Stanley; Ted Richards, Plaintiffs-Appellants, and West Virginia Citizen Action Group, a corporation, Plaintiff, v. Daniel R. GLICKMAN, in his official capacity as Secretary of the United States Department of Agriculture; Charles B. Felton, in his official capacity as Director of the West Virginia Division of Natural Resources; Paul W. Johnson, in his official capacity as Chief Administrator of the Soil Conservation Service, United States Department of Agriculture; Arthur E. Williams, Lieutenant General, in his official capacity as Chief of Engineers, United States Army Corps of Engineers; Robert L. Bensey, in his official capacity as State Conservationist, Natural Resources Conservation Service, United States Department of Agriculture; Fred Fields, in his official capacity as Chairman of the Board of Supervisors of the Little Kanawha Soil Conservation District, a political subdivision of the State of West Virginia, Defendants-Appellees, and Mike Espy, in his official capacity as Secretary of the United States Department of Agriculture; Rollin Swank, in his official capacity as State Conservationist, Soil Conservation Service, United States Department of Agriculture; John Sims, in his official capacity as Chairman of the Board of Supervisors of the Little Kanawha Soil Conservation District, a political subdivision of the State of West Virginia; James B. Lawrence, in his official capacity as Commissioner of the West Virginia Division of Tourism and Parks; Jesse L. White, Doctor, in his official capacity as Co-Chairman of the Appalachian Regional Commission, Defendants. American Rivers, Incorporated, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. William M. Kidd, Senior District Judge. (CA-94-113-1).
ARGUED: Robert Geoffrey Dreher, Sierra Club Legal Defense Fund, Washington, DC, for Appellants. Robert Lawrence Klarquist, United States Department of Justice, Washington, DC; Christopher Burr Power, Robinson & McElwee, Charleston, West Virginia, for Appellees. ON BRIEF: Thomas R. Michael, Michael & Kupec, Clarksburg, West Virginia, for Appellants. Lois J. Schiffer, Assistant Attorney General, J. Carol Williams, United States Department of Justice, Washington, DC; William D. Wilmoth, United States Attorney, Patrick M. Flatley, Assistant United States Attorney, Wheeling, West Virginia; Jeffrey D. Eisenberg, United States Department of Agriculture, Washington, DC; Terry Clark, Assistant District Counsel, United States Army Corps of Engineers, Huntington, West Virginia, for Federal Appellees. David L. Yaussy, Robinson & McElwee, Charleston, West Virginia, for Appellees Fields and Little Kanawha District; Darrell V. McGraw, Jr., Attorney General, Rex Burford, Senior Assistant Attorney General, Charleston, West Virginia, for State Appellees.
Before HALL and HAMILTON, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded for further proceedings by published opinion. Judge HAMILTON wrote the majority opinion, in which Senior Judge PHILLIPS joined. Judge HALL wrote a dissenting opinion.
The Hughes River Watershed Conservancy, the Sierra Club, the West Virginia Rivers Coalition, and four private individuals (collectively referred to as "the Conservancy") brought this action against federal and West Virginia officials (collectively referred to as "the Agencies") seeking judicial review of the decisions of the Natural Resources Conservation Service (the NRCS) and the United States Army Corps of Engineers (the Corps) approving construction of a dam on the North Fork of the Hughes River in northwestern West Virginia. The Conservancy alleged, among other things, that the NRCS and the Corps violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-70d, and the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. §§ 1271-87. The district court granted summary judgment in favor of the Agencies and the Conservancy appealed. We affirm in part, vacate in part, and remand for further proceedings.
The North Fork of the Hughes River (the North Fork) is a free-flowing river located in a rugged and mountainous area of northwestern West Virginia. In addition to its extraordinary scenic value, the North Fork is the habitat of an extensive variety of fish and wildlife. It supports a population of twenty-two freshwater mussel species, including two species under consideration for listing as threatened or endangered under the Endangered Species Act. See 16 U.S.C. § 1533. It also contains wetland areas, riffle and pool complexes, and vegetated shallows that provide habitats for various species. The North Fork is listed on the National Park Service's Nationwide Rivers Inventory as a possible addition to the National Wild and Scenic Rivers System.
For more than twenty years, the Little Kanawha Soil Conservation District and several municipalities in the North Fork area (the Local Sponsors) have considered building a multipurpose dam on the North Fork to curb periodic flooding, improve water supply, increase recreational opportunities, and stimulate the area's economy. The proposed dam eventually came to be known as the "North Fork Hughes River Watershed Project" (the Project).
In 1971, the Local Sponsors applied to the NRCS 1 for assistance in building the Project. The NRCS responded in 1975 with a proposal for construction of the Project. This proposal remained dormant for years because the Local Sponsors could not raise their share of the funds needed to construct the Project.
Local interest in the Project was renewed in 1988, following a drought. The Local Sponsors again sought assistance from the NRCS. The NRCS accordingly began reexamining the feasibility of the Project. In the meantime, the Appalachian Regional Commission (the ARC) became interested in the Project. The ARC, a federal agency established to assist in the economic development of the Appalachian region, subsequently elected to pursue the Project as a special rural economic stimulus project. Through the ARC, the cost of the Project would be paid entirely with federal funds.
The NRCS entered into an agreement with the ARC requiring the NRCS to assist in the planning, design, and construction of the Project. The NRCS determined that in order to comply with NEPA, an environmental impact statement (EIS) should be prepared before going forward with the Project. After conducting a series of public meetings, the NRCS released and circulated for comment a draft EIS for the Project. The draft EIS proposed that a multipurpose dam creating a 305-acre lake be built on the North Fork.
In response to a request for public comment on the draft EIS, the Sierra Club, the Department of the Interior, and the Environmental Protection Agency (the EPA) informed the NRCS that they considered the draft EIS to be deficient for several reasons. They pointed out that the EIS did not adequately analyze the adverse environmental effects of the Project, did not adequately consider methods of mitigating those effects, and did not adequately explore possible alternatives to the Project. Additionally, the Department of the Interior and the EPA expressed concern that the Project would eliminate the North Fork's potential for being designated as part of the National Wild and Scenic Rivers System. And the Sierra Club questioned the reliability of the NRCS's estimate of the Project's economic benefits.
In June 1994, the NRCS released a final EIS, which contained the NRCS's responses to the comments it received regarding the draft EIS. And in July 1994, the NRCS issued a record of decision (NRCS's ROD) approving the Project.
Meanwhile, one of the Local Sponsors, the Little Kanawha Soil Conservation District, applied to the Corps local district office (the District Office) for a permit under § 404 of the Clean Water Act for the Project. 2 The District Office then issued a public notice soliciting comments on the application. The public notice explained that the comments would be used to assist the Corps in complying with its obligations under NEPA.
Both the EPA and the Department of the Interior's Fish and Wildlife Service (the FWS) responded to the public notice by recommending that the § 404 permit be denied because the Project would result in substantial and unacceptable damage to the North Fork. When the EPA received the public notice, it was in the process of reviewing the NRCS's final EIS for the Project. The EPA informed the Corps that the final EIS was inadequate and that the Corps should therefore prepare a supplemental EIS before going forward with the Project. Both the EPA and the FWS objected to the final EIS's inadequate analysis of alternatives to the Project and to the elimination of the North Fork's potential to be included in the National Wild and Scenic Rivers System as a result of the Project. The EPA also warned the Corps that the Project would probably cause infestation of the North Fork by zebra mussels, a non-indigenous mollusk that destroys native mussel populations.
Without resolving all the issues raised by the EPA and the FWS, the District Office notified the EPA and the FWS that it intended to issue a § 404 permit for the Project. The Conservancy then filed this action seeking judicial review of the NRCS's and the Corps's approval of the Project and requesting temporary relief to prevent construction of the Project.
Thereafter, the EPA and the FWS each requested that the Assistant Secretary of the Army for Civil Works (the Assistant Secretary) review the ...
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