Cape Henry Bird Club v. Laird

• Decision Date: 02 April 1973
• Docket Number: Civ. A. No. 73-C-9-R.
• Citation: 359 F. Supp. 404
• Parties: CAPE HENRY BIRD CLUB et al., Plaintiffs, v. Melvin R. LAIRD et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

359 F. Supp. 404

CAPE HENRY BIRD CLUB et al., Plaintiffs, v. Melvin R. LAIRD et al., Defendants.

Civ. A. No. 73-C-9-R.

United States District Court, W. D. Virginia, Roanoke Division.

April 2, 1973.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gladys Kessler, Berlin, Roisman & Kessler, Washington, D. C., Stanley E. Sacks, Girard C. Larkin, Jr., Sacks, Sacks & Tavss, Norfolk, Va., and Holman Willis, Jr., Roanoke, Va., for plaintiffs.

Paul R. Thomson, Jr., Asst. U. S. Atty., Roanoke, Va., Irwin Schroeder, U. S. Dept. of Justice, Washington, D. C., and Gary L. Bohlke, Corps of Engineers, Washington, D. C., for U. S. and others, defendants.

William T. Wilson, Collins & Wilson, Covington, Va., for Covington-Alleghany County Chamber of Commerce and James River Basin, defendant-intervenors.

Clarence W. Allison, Jr., Commonwealth Atty., Covington, Va., for Bd. of Supervisors of Alleghany County, defendant-intervenor.

William Carson, City Atty., Covington, Va., for City of Covington, defendant-intervenor.

James R. Saul, Asst. City Atty., Richmond, Va., for City of Richmond, defendant-intervenor.

C. Shepherd Nowlin, City Atty., Lynchburg, Va., for City of Lynchburg, defendant-intervenor.

William Goode, City Atty., Clifton Forge, Va., for City of Clifton Forge, defendant-intervenor.

Erwin S. Solomon, Commonwealth Atty., Hot Springs, Va., for Bd. of Supervisors of Bath County, defendant-intervenor.

OPINION and JUDGMENT

DALTON, Chief Judge.

INTRODUCTION

This case represents a relatively new and growing subject of court litigation relating to the effects of man's projects upon his environment. In this instance it concerns the construction of the Gathright Dam which is being built on the Jackson River in Alleghany and Bath Counties, Virginia. The original plaintiffs and all plaintiff-intervenors have asked this court to grant a permanent injunction against any further construction on the dam.

The Congress of the United States has, on previous occasions, considered the Gathright project. Beginning with its initial authorization by the Flood Control Act of 1946, the project has over the years received the attention of our elected representatives. By reason of various delays, the project was not begun in earnest until 1963 when funds for advanced engineering and design were authorized. Land acquisition began in 1967, and actual construction was started in 1968. The project, expected to cost approximately $47 million dollars, is currently about 30% complete. It is intended to provide for flood control, water quality control, and recreation.

THE PROJECT

The dam itself will be constructed of earth and rock-fill and will be 257 feet in height. It will create a lake which will remove about twelve miles of the Jackson as a free-flowing river. Current plans call for the lake created by the dam to be maintained at an elevation of 155 feet. This level is the maximum height to which the lake will reach. As water is needed downstream to augment the low flow periods of the Jackson River, more water will be released from the lake to restore the river to its normal flow. The minimum height to which the lake is to be drawn down is 127 feet above the river bed, thus maintaining the lake level between 127 feet and 155 feet above the river bed.

During flood stages a flood control pool, the maximum height of which will be 183 feet, will be provided for above the 155 foot level. In addition an emergency spillway, located at level 240 feet, will provide added protection to the dam in the event that flood waters rise appreciably above the 183 foot level. After a flood period subsides, the waters stored above the 155 foot level will be gradually released until the level of 155 feet is reached.

As currently designed, the lake at level 127 feet will cover 1,780 acres and will store 63,000 acre-feet water. At its maximum the lake will cover 2,530 acres and provide storage for 123,700 acre-feet of water. Based upon past history, the maximum surface area of the flood control pool at elevation 183 feet will be 3,160 acres and contain 203,600 acre-feet of water.

A large portion of the area acquired was originally part of the T. M. Gathright Wildlife Management Area which was owned privately until purchased by the Commonwealth of Virginia in 1958. Approximately 10% of the land to be acquired by the federal government is cropland and pasture, the remaining portion being woodland and forest. Under the auspices of Virginia's Commission of Game and Inland Fisheries, the area is quite productive in wildlife, particularly wild turkey and deer. While the river supports several species of fresh water fish, it does not sustain the trout fishing pressure and is therefore periodically stocked with trout by the Commission. Other activities for which the area is used are hiking, swimming, picnicking and camping.

One of the principal purposes of the dam will be flood control. The Jackson River watershed has been subjected to fourteen floods within the 59 year period from 1913 to 1972. As determined by the Army Corps of Engineers, bankfull capacity occurs when the river is flowing at a rate of approximately 13,000 c. f. s. (cubic feet per second). During this 59 year interval, twelve floods have exceeded 14,000 c. f. s., four of which have occurred within the past ten years—1963, 1967, 1969 and 1972. The Corps contends that the dam will have significant flood control effect in the Covington and Clifton Forge area, with effects downstream to Lynchburg. Beyond this point, the dam will provide decreasing flood control benefits which, when Richmond is reached, will be minimal.

A second reason for the dam's construction is water quality control, which is perhaps the most controversial issue in this case. During several months of the year the Jackson River's flow decreases substantially, sometimes to the point where much of the river bed is exposed. To alleviate this problem, the Corps proposes that water stored behind the dam will be released as needed to augment the flow of the river. Augmentation will continue when necessary until the minimum level of the lake is reached, at which time it will cease.

Based upon the Corps' historical data for the recreation season, extending from May 1 through October 31, there will be no need for low flow augmentation during a wet season. In an average year some drawdown will occur. According to past averages drawdown will begin near the end of June and continue on through to the end of the recreation season. It is contended that during these periods the lake would not fall more than 12 feet. During a normal year the lake would vary between 153 feet and 155 feet. The Corps contemplates that during a dry season there would be complete drawdown by the end of October.

The Corps has computed that complete drawdown will occur once in every seventy years; a drawdown of 10 feet can be expected once every two years; a 17 foot drawdown—once every five years; a 20 foot decrease—once every ten years; and one of 23 feet—once every twenty years.

The project is also designed to include extensive recreational activities which are associated with a lake development.

ENVIRONMENTAL IMPACT OF THE PROJECT

No project of any size is without its environmental impact, and the present one is no exception. The Corps itself admits that the project will have an environmental impact. Of the approximately 8,400 acres acquired for the project, about 2,530 acres will be permanently inundated. Twelve miles of the Jackson River, presently free flowing, will be permanently inundated.

At the dam site itself, the construction activity has caused the baring excavation and destruction of part of Kincaid Gorge. The gorge has been scarred and as the lake fills, about three-fourths of it will be under water. Construction will also have the short term effect of depositing increasing amounts of earth and rock into the river.

The creation of the lake will force the relocation of roads and utilities, and make other changes in the area, thus having an effect on the natural environment.

As the dam nears completion, most of the timber, standing and downed, will be removed from the area to be covered by the lake. Tree and shrub clearing will take place over most of the lake bottom and will extend up to between five feet below and three feet above the maximum height of the lake (level 155 feet).

JURISDICTION

Jurisdiction is vested in this court by reason of 28 U.S.C. § 1331 because this case arises under a law of the United States, namely 42 U.S.C. § 4331. In addition, 5 U.S.C. §§ 701-706 provide additional grounds for this court's jurisdiction and for review of the federal defendants' decision to proceed with the dam's construction.

PLAINTIFFS' CONTENTIONS AND RELIEF SOUGHT

The plaintiffs allege that the federal defendants have failed to comply with the following statutes and as a result their actions are illegal because their decision to construct the dam was arbitrary and capricious. They contend and allege:

1) that the benefit-cost ratio given by the Corps was arbitrary and capricious under the standards set forth in the National Environmental Policy Act (hereinafter referred to as NEPA), 42 U.S.C. § 4331 et seq., the Federal Water Pollution Control Act Amendments of 1972 (hereinafter referred to as the 1972 FWPCA Amendments), P.L. 92-500, October 18, 1972 (86 Stat. 816), the Fish and Wildlife Coordination Act of 1958, 16 U.S.C. § 661 et seq., and the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; 2) that § 101 of NEPA (42 U. S.C. § 4331) was not adhered to; 3) that § 102 of NEPA (42 U.S.C. § 4332) was not complied with in that: a) the Corps failed to use a systematic interdisciplinary approach in planning and decision making; b) that the Corps failed to quantify and adequately consider the environmental amenities of and values of the area; c) that it failed to give adequate consideration to alternatives to the project; and d) that...