Akers v. Resor, Civ. No. C-70-349.

• Decision Date: 27 January 1978
• Docket Number: Civ. No. C-70-349.
• Citation: 443 F. Supp. 1355
• Parties: J. Clark AKERS, III, and William W. Dillon, III, Individually and as part owners of Middle Fork Hunt Club, and John Tudor and Sam Harwell, Individually and as part owners of Davy Crockett Hunting Club, all citizens and residents of Davidson County, Tennessee, Plaintiffs, and The National Wildlife Federation and the Tennessee Conservation League, nonprofit corporations, Plaintiffs-Intervenors, v. Stanley R. RESOR, Individually and as Secretary of the Army, Lt. Gen. Frederick J. Clarke, Individually and as Chief of Engineers, Corps of Engineers, Col. John V. Parish, Jr., Individually and as District Engineer, Corps of Engineers, Rogers C. B. Morton, Individually and as Secretary of the Interior, and Greer Ricketson, Chairman, Game and Fish Commission of the State of Tennessee, et al., Defendants, M. V. Williams and West Tennessee Tributaries Association, Dyer County Levee and Drainage District No. 1, City of Union City, Tennessee, Town of Rives, Tennessee, Town of Obion, Tennessee, City of Dyersburg, Tennessee, Town of Trenton, Tennessee, Town of South Fulton, Tennessee, City of Bells, Tennessee, City of Fulton, Kentucky, Intervening Defendants.
• Court: U.S. District Court — Western District of Tennessee

443 F. Supp. 1355

J. Clark AKERS, III, and William W. Dillon, III, Individually and as part owners of Middle Fork Hunt Club, and John Tudor and Sam Harwell, Individually and as part owners of Davy Crockett Hunting Club, all citizens and residents of Davidson County, Tennessee, Plaintiffs and The National Wildlife Federation and the Tennessee Conservation League, nonprofit corporations, Plaintiffs-Intervenors, v. Stanley R. RESOR, Individually and as Secretary of the Army, Lt. Gen. Frederick J. Clarke, Individually and as Chief of Engineers, Corps of Engineers, Col. John V. Parish, Jr., Individually and as District Engineer, Corps of Engineers, Rogers C. B. Morton, Individually and as Secretary of the Interior, and Greer Ricketson, Chairman, Game and Fish Commission of the State of Tennessee, et al., Defendants M. V. Williams and West Tennessee Tributaries Association, Dyer County Levee and Drainage District No. 1, City of Union City, Tennessee, Town of Rives, Tennessee, Town of Obion, Tennessee, City of Dyersburg, Tennessee, Town of Trenton, Tennessee, Town of South Fulton, Tennessee, City of Bells, Tennessee, City of Fulton, Kentucky, Intervening Defendants.

Civ. No. C-70-349.

United States District Court, W. D. Tennessee, W. D.

January 27, 1978.

Charles H. Warfield, Nashville, Tenn., for original plaintiffs.

Charles F. Newman, Memphis, Tenn., for intervening plaintiffs.

W. J. Michael Cody, U. S. Atty., W. Hickman Ewing, Jr., Asst. U. S. Atty., Memphis, Tenn., for federal defendants.

Barret Ashley, Dyersburg, Tenn., for intervening defendants M. V. Williams and West Tennessee Tributaries Association.

E. T. Palmer, M. Watkins Ewell, Jr., Dyersburg, Tenn., for intervening defendant Dyer County Levee & Drainage District No. 1.

Fenner Heathcock, Union City, Tenn., for remaining intervening defendants.

Bobby L. Stratton, Nashville, Tenn., for amicus curiae Tennessee Wildlife Resources Agency.

MEMORANDUM DECISION

BAILEY BROWN, Chief Judge.

This action was brought to challenge the sufficiency of the defendant Corps of Engineers' attempts to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and the Fish and Wildlife Coordination Act of 1958, 16 U.S.C. § 661 et seq., with regard to the Corps' West Tennessee Tributaries Project. This court determined in 1972 that the previous environmental impact statement compiled by the Corps for this project did not meet NEPA standards. The Corps has now prepared a revised EIS.

We have held an extensive evidentiary hearing in this matter, and the parties have submitted briefs dealing with the legal and factual issues presented. This opinion constitutes the court's findings of fact and conclusions of law.

By agreement of the parties, we now address only the issue of the adequacy of the EIS under NEPA.¹ For the reasons stated in this opinion, the court concludes that the present EIS is not sufficient to meet NEPA standards.

BACKGROUND.

The West Tennessee Tributaries Project was initially authorized by the Flood Control Act of 1948, P.L. 80-858, 62 Stat. 1171.² The Congress subsequently modified the project by providing for relocation of gas transmission lines dislocated by the work, and for the purchase of mitigation lands to preserve fish and wildlife resources and to protect recreational and environmental interests. Flood Control Act of 1966, P.L. 89-789, § 207, 80 Stat. 1418; Water Resources Development Act of 1974, P.L. 93-251, § 3, 88 Stat. 16.

The project contemplates enlargement and realignment of the main stem and tributary channels of the Obion River and the Forked Deer River. The purpose of the project is to reduce flooding in the surrounding area.

Work was started on the project in the early nineteen-sixties, and is now roughly thirty-two percent complete.

This lawsuit was filed in 1970. This court determined in 1972 that both NEPA and the Fish and Wildlife Coordination Act standards are applicable to the Corps' action in deciding to continue work on this partially completed project, and that such agency action is reviewable under 5 U.S.C. § 706. Akers v. Resor, 339 F.Supp. 1375 (W.D.Tenn.1972).

Subsequently, this court determined that the Corps had failed to comply with NEPA requirements as to the adequacy of the Environmental Impact Statement, and enjoined the Corps from

any new construction of flood control and drainage improvements on the Obion and Forked Deer Rivers and their tributaries, as authorized under Public Law No. 526, 79th Congress, 2d Session, approved July 24, 1946, and Public Law No. 858, 80th Congress, 2d Session, approved June 30, 1948 . . ..³ and retained jurisdiction of this cause. Memorandum Decision entered December 28, 1972, C-70-349 (W.D.Tenn.); Final Judgment entered March 2, 1973, C-70-349 (W.D.Tenn.). Thereafter the second EIS, now before the court, was filed.

ADEQUACY OF EIS AS TO ENVIRONMENTAL IMPACTS, INCLUDING UNAVOIDABLE ADVERSE ENVIRONMENTAL EFFECTS.

NEPA clearly requires the Corps in these circumstances to make a detailed statement on the environmental impact of the project, and on any adverse environmental effects which cannot be avoided should the project be completed. 42 U.S.C. § 4332(2)(C)(i), (ii).

Environmental Impacts

There can be no question that alterations in the runoff capacities of the rivers and tributaries involved, leading to the draining of some surrounding lakes and wetland areas and to changes in flooding patterns and frequency, would constitute the primary environmental impacts caused by project completion. In fact, the cost benefit analysis applied by the Corps in the EIS depends largely on the effect such impacts would have on the character of the land involved and on flood risks.

The EIS projects, for example, significant changes in the relative occurrence of lakes, wetlands, woodlands, and farmlands in the project area. These changes would necessarily alter both productive and recreational uses of these lands, as well as altering the area's ecological balance and aesthetic qualities. Further, the EIS projects reduced flood damage to crops and increased flood protection for urban areas.⁴

The EIS deals adequately with the effect the project would have on the relative occurrence of lakes, wetlands, woodlands, and farmlands in the area. While there is some disagreement about the extent of drainage and other changes which would occur, the Corps has fully set forth its own views in the EIS, and has also included opposing viewpoints on the matter.

The same cannot be said with regard to treatment of the project's flood control aspects in the EIS. It is true that the EIS contains a great deal of language concerning expected flood control impact, and resultant economic benefits.

However, at no point does the EIS set out the frequency, duration, or extent of flooding to be expected under current conditions. The EIS does not attempt to identify particular areas of the total project area which are subject to different levels of flood risk. Nor does the EIS predict what impact project completion would have on such expected flooding. Further, there is no attempt to break expected flooding into seasonal projections, in order to measure the actual impact of such flooding on agricultural activities.⁵

The EIS does attempt to describe the flood control impact of the project in terms of a design flow statistic of 1.05. However, the EIS gives no comparable statistic to describe current conditions, so it is not possible to determine from the EIS what improvement, if any, would result from project completion.

More importantly, neither the EIS nor the Corps' expert witnesses who testified at the hearing of this cause present any understandable explanation of what the 1.05 figure means. The most probable interpretation is that this figure represents that in a period of 105 years, floodwaters will rise over the banks of the river on 100 occasions. Assuming, arguendo, that this interpretation is correct, the 1.05 figure still does not describe the duration or extent of the flooding expected to occur, nor does it describe the frequency of flooding for particular areas within the over-all project area.

The Sixth Circuit has had opportunity to comment on the purpose of the environmental impact statements required by NEPA, and on the approach to be followed in reviewing their adequacy. An EIS must contain information adequate to permit Congress and the public, as well as the executive branch, to evaluate a project in light of its environmental risks, and to compare the project as proposed with possible alternatives. It is not necessary that an EIS be perfect, or that it contain "every particle of knowledge" available to the responsible agency. Rather, the adequacy of an EIS must be measured by standards of practicability and reasonableness. Natural Resources Defense Council v. T. V. A., 502 F.2d 852 (6th Cir. 1974); Environmental Defense Fund v. T. V. A., 492 F.2d 466 (6th Cir. 1974).

The information contained in the West Tennessee Tributaries EIS now before this court simply does not contain information which would enable the reader to form any meaningful conclusions about the impact of the project on flooding in the area. This deficiency flies in the face of the NEPA requirement for a detailed statement on the environmental impact of the proposed action. 42 U.S.C. § 4332(2)(C)(i). Moreover, the lack of meaningful information concerning project impact on flooding is particularly critical in light of the fact that the proof now before the court demonstrates that the primary justification for the project is flood control, and the Corps concedes that only a low degree of flood protection will be obtained in any event. The Corps' failure to include necessary information regarding flood control in the EIS raises serious questions about the validity of portions of the economic analysis used to justify the project.

Unavoidable Adverse Environmental Effects

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