League of Women Voters of Tulsa, Inc. v. U.S. Corps of Engineers, 81-1947

• Citation: 730 F.2d 579
• Decision Date: 14 March 1984
• Docket Number: No. 81-1947,81-1947
• Parties: , 14 Envtl. L. Rep. 20,373 LEAGUE OF WOMEN VOTERS OF TULSA, INC., a non-profit corporation, League of Women Voters of Oklahoma, Inc., a non-profit corporation, Patricia Laner, Sudye Neff Kirkpatrick, and Kathy Groshong, Plaintiffs-Appellees, v. The UNITED STATES CORPS OF ENGINEERS, Lieutenant General John W. Morris, Commanding Officer, United States Corps of Engineers, Colonel Anthony A. Smith, Commanding Officer, United States Corps of Engineers, Tulsa District, and Honorable John O. Marsh, Jr., Secretary of the Army, Defendants-Appellants, City of Tulsa, Oklahoma, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 579

730 F.2d 579

21 ERC 1424, 14 Envtl. L. Rep. 20,373

LEAGUE OF WOMEN VOTERS OF TULSA, INC., a non-profit corporation, League of Women Voters of Oklahoma, Inc., a non-profit corporation, Patricia Laner, Sudye Neff Kirkpatrick, and Kathy Groshong, Plaintiffs-Appellees, v. The UNITED STATES CORPS OF ENGINEERS, Lieutenant General John W. Morris, Commanding Officer, United States Corps of Engineers, Colonel Anthony A. Smith, Commanding Officer United States Corps of Engineers, Tulsa District, and Honorable John O. Marsh, Jr., Secretary of the Army Defendants-Appellants City of Tulsa, Oklahoma, Amicus Curiae.

No. 81-1947.

United States Court of Appeals Tenth Circuit.

March 14, 1984.

Martin W. Matzen, Atty., Dept. of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Frank Keating, U.S. Atty., Hubert A. Marlow, Asst. U.S. Atty., Tulsa, Okl., Anne S. Almy, Atty., Dept. of Justice, Washington, D.C., with him on brief, Russell Petit, Atty., U.S. Army Corps of Engineers, Washington, D.C., James G. Dwen, Jr., Asst. Dist. Counsel, U.S. Army Corps of Engineers, Tulsa Dist., Tulsa, Okl., of counsel), for defendants-appellants.

Andrew T. Dalton, Jr., Tulsa, Okl. (James N. Khourie, Tulsa, Okl., with him on brief), for plaintiffs-appellees.

Neal E. McNeill, City Atty., Imogene Harris, Asst. City Atty., Tulsa, Okl., filed brief on behalf of amicus curiae City of Tulsa, Okl.

Before SETH, Chief Judge, and SEYMOUR and TIMBERS, ^* Circuit Judges.

SETH, Chief Judge.

The trial court held that the Corps-Tulsa final contract for water storage space in Oologah Reservoir and repayment of the City's share of cost was a major federal action requiring a full NEPA impact statement by the Corps of Engineers. The Corps takes this appeal and urges that there were no discretionary elements left as all the planning, contracting for space and construction had been completed, thus no decisions remained subject to NEPA.

The development of the Oologah Reservoir covers an extended period of time and the contract in issue comes at the very end. There were a long series of Congressional directives, statutes, construction work, contracts for storage space in the reservoir, agreements relating to the cost of the development, and construction by the City of pipeline and use of water by the City. Since the period is long and so much has gone before it seems best to list the events in sequence. Thus:

1950--A small Oologah Reservoir was authorized in the 1938 Act for flood control. This was followed by a period of drought and Tulsa became concerned about its future water needs. The City asked Congress to build a reservoir to provide water to the City at 200 million gallons per day.

Congress agreed to enlarge the Oologah Reservoir if Tulsa could obtain a water permit from the State of Oklahoma, and if the City would agree to repay a share of the cost. In response, the City obtained a state permit or allocation of water from Oologah Lake for municipal purposes (No. 54-517), and thus obtained a state "water right." The City entered into a contract with the Corps of Engineers to repay its share of the costs.

1955--Construction started on the Oologah Lake dam.

1956--The City and the Corps of Engineers negotiate a temporary water storage contract to store the water in the Oologah which had been allocated to the City by the State.

This agreement had a provision for cost recovery by the Corps.

Corps set aside 38,000 acre-feet of water storage space for the City. The Secretary of the Army approved the contract in March of 1958.

1958--Water Supply Act, 72 Stat. 319.

1961--The Tulsa-Corps contract was modified to meet the requirements of the Water Supply Act of 1958. The Water Supply Act requires the Corps to recover costs. The original contract (1956) contained a provision, which was not changed, that the parties would enter into a final contract when the development of the project was completed. This provision was as follows:

"It is the understanding and expectation of the parties hereto that upon change from the initial stage of development of the Project or upon expiration of the 50-year period ... the City shall have the prior right, subject to any required approval of appropriate State authorities, to negotiate a new contract for use of storage space then available for water supply purposes, with the new contract providing for appropriate modification in quantity, elevation and annual payment. The terms of the new contract shall be subject to mutual agreement at the time ...."

1962--The dam and the project are completed as a flood control device.

1963--Changes in Water Supply Act of 1958. Pub.L. 88-140 (1963).

The changes recite that they are applicable to dams already built or to be built and where the "local interests have acquired or may acquire rights to utilize certain storage space ... by making payments ... as specified in the agreement with the Government." (43 U.S.C. Sec. 390d)

The changes refer to "local interests" which have contracted to repay the Corps the share of cost of facilities and provide that "their right to use [the facilities] may be continued during the existence of the facility as hereinafter ... provided." (43 U.S.C. Sec. 390c)

The change states that the space "is hereby declared to be available to the local interest so long as the space designated for that purpose may be physically available." (43 U.S.C. Sec. 390e)

The changes thus recognize the right to space for "local interests" so long as the reservoirs exist and so long as the cities make the payments.

Section 4 provides:

"Upon application of any affected local interest its existing lease or agreement with the Government will be revised to evidence the conversion of its rights to the use of the storage as prescribed in [this Act]." (43 U.S.C. Sec. 390f)

1970--Construction of basic storage facilities at Oologah were completed.

1970--January 1, NEPA enacted.

1972--Final stage of development of the project starts.

1974--Tulsa asks Corps for final contract in accordance with above quoted provision in original agreement. This is the contract in issue in these proceedings.

1974--Water Resources Development Act of 1974 (88 Stat. 33) by Section 79 directs that the Oologah be available for municipal and industrial water supply pursuant to the Water Supply Act of 1958, 43 U.S.C. Sec. 390b. This was an express directive by Congress that this project, already in existence, would be used for such water storage (Section 79). Thus:

"Sec. 79. The multi-purpose plan for the improvement of the Arkansas River and tributaries, authorized by the River and Harbor Act of July 24, 1946, as amended and modified, is hereby further amended to authorize the Secretary of the Army, acting through the Chief of Engineers, to reassign the storage provided in the Oologah Reservoir for hydroelectric power production to municipal and industrial water supply and to make such storage available for such purposes under the Water Supply Act of 1958, as amended."

Also the Senate Committee Report in Section 79 (S.Rep. 93-615, 93rd Cong. 1st Sess. 104 (1973), refers to the Oologah and it is therein stated:

"When the Oologah project was originally planned and constructed, the plan of improvement considered most practical included the future addition of power generating facilities, and storage was reserved for this purpose. However, since construction, the economic feasibility for the addition of hydroelectric power has declined while the demand for municipal and industrial water supply has steadily increased. This section recognizes this change in needs and modifies the project accordingly."

(The House Report makes a similar reference.)

1976--Corps of Engineers filed an Operational and Maintenance Environmental Impact Statement which described the use of the lake for water storage for municipal purposes, among other things.

February 4, 1977--This suit started.

During pendency of suit:

Tulsa voted bonds for pipeline from Oologah and right of way. Construction undertaken and pipeline completed in 1977.

City began to take water from lake on a regular basis pursuant to its state permit.

Trial court was aware of construction, development and water use by City.

City tendered payment to Corps for its share of construction costs.

November 1977--Trial court held that Corps should make a formal determination whether a significant environmental impact would result from the contract under NEPA.

Assessment filed in response to the court order which concluded that contract had no significant impact. Court rejected this conclusion and ordered that an impact statement be prepared. Corps filed notice of appeal. The League of Women Voters and the individual plaintiffs sought an injunction to stop the City from taking water from the reservoir. This was denied by the trial court which mentioned that other federal laws were involved. The plaintiffs and the trial court considered the contract as an event which required an examination of the entire project as if it was then beginning, and as if the Corps had water rights to allocate among users. Thus the League of Women Voters urges that alternatives to the project be considered, that delay should be considered as an alternative, that alternative uses for the water be discussed and alternative users be considered, among other things.

The Corps of Engineers is not involved with the distribution of water from the Oologah Reservoir, it has no water rights and no authority to allocate water among users as this is a state function, and it has no control over the water rights of others. Thus the Corps' contract with Tulsa must be very narrow in scope. It is for money and for storage space in the lake. The money part--the recovery of a share of costs--is required by statute. The storage had been long planned, decided and contracted for, and in any event represents a decision by Congress.

The significant developments...