Miller v. United States, LR-C-80-257.
| Decision Date | 02 July 1980 |
| Docket Number | No. LR-C-80-257.,LR-C-80-257. |
| Citation | 492 F. Supp. 956 |
| Parties | Lewis Earl MILLER, Don Scoggins, and the Wilder Cemetery Association, Plaintiffs, v. The UNITED STATES and Colonel Dale K. Randels, District Engineer, Little Rock District, Corps of Engineers, Defendants. |
| Court | U.S. District Court — Eastern District of Arkansas |
Edward Allen Gordon, Morrilton, Ark., H. Clay Robinson, Fort Smith, Ark., for plaintiffs.
Markham Lester, Asst. U. S. Atty., R. E. Rogers, Jr., Little Rock, Ark., for defendants.
This case arises out of the proposed construction of a reservoir designed to provide the City of Conway, Arkansas with an adequate water supply. The plaintiffs are property owners whose land would be affected by the impoundment, and the defendant is the Army Corps of Engineers, the organization responsible for the selection of the site and the preparation of the Environmental Impact Statement. The case was first heard on the plaintiffs' motion for a preliminary injunction. The court denied the injunction, and, after a second hearing, we are now in a position to review the case on the merits.
In 1974 Congress authorized the construction of a new water supply facility for the City of Conway in Faulkner County, Arkansas. The city's original source of water was damaged when the McClellan-Kerr Arkansas River Navigation System raised the level of the Arkansas River, an act which resulted in the contamination of the Conway Water System. Accordingly Congress ordered "the alteration at Federal Expense of the municipal water supply facilities of the City of Conway, Arkansas, by the construction of water supply impoundment facilities at a location outside the flat flood plain of Cadron Creek, together with interconnecting pipeline and other appurtenant works, so that the water supply capacity of the resultant facilities is approximately equivalent to that existing prior to the construction of the navigation system."
In response to the Congressional directive, the Corps began a study of various sites which might adequately accommodate the replacement system. Initially, a site at mile 2.6 on Cypress Creek was selected and a draft environmental impact statement was prepared. However, after public hearings were held, a less expensive site which would produce higher quality water was chosen. This site was located on mile 6.7 on Cypress Creek, and in conjunction with this selection a final Environmental Impact Statement was compiled. It is both the procedural and substantive inadequacy of this statement that is being challenged by the plaintiffs.
The final EIS is in large part devoted to a study of the environmental impacts which would be the result of the proposed impoundment. Cypress Creek lies northwest of Conway in Conway County, Arkansas. It is part of the Cypress Creek Drainage Basin which is in turn a smaller part of the Arkansas River Drainage Basin. The Cypress Creek Drainage Basin is bounded on the south by Cadron Ridge. That portion of the City of Conway lying to the south of Cadron Ridge is in the Palarm Creek Drainage Basin. The proposed impoundment will create a lake capable of supplying 16.75 million gallons of water per day; this is roughly equivalent to the amount provided by Conway's existing system. The creation of the lake would result in the inundation of approximately 1,165 acres. An additional 1,291 acres would be acquired as mitigation lands. The lake would supply Conway with water of a significantly higher quality than that produced by the existing system. The impoundment will obviously have an effect on the area's plant, fish and animal resources. Accordingly the EIS provides for the purchase of mitigation acreage which would be developed by the Corps but would ultimately be managed by the Arkansas Game and Fish Commission. Although public access to the area will be limited, the plan does provide for two access areas to the reservoir and one to the tailwater, each of which would be accompanied by adequate parking space. The lake itself is capable of supporting approximately 35,000 man-days of fishing and 300 man-days of waterfowl hunting. In March of 1979 the Fish and Wildlife Service approved the mitigation plan and the provisions for public access to the reservoir and mitigation area.
In addition to the impact on the area's natural resources, the impoundment will have cultural and socio-economic effects. Nineteen families, a business and a cemetery lot will have to be relocated; 623 acres of prime farmland will be inundated, 10 archeological sites will be lost, and eight historic sites will be destroyed. Studies are presently under way to determine the significance of the archeological and historic sites. If any of the sites are determined by the state to be significant, a plan of mitigation will be developed and coordinated with the Arkansas State Historic Preservation Officer, the State Archeologist and the Advisory Council on Historic Preservation. Until such a determination is made, the sites will be treated as though they were significant. The total cost for the construction of the reservoir and the plans outlined in the EIS is $23,100,000.00, and the annual operation and maintenance cost is estimated to be $103,000.00.
The remainder of the EIS is devoted to a discussion of the alternative sites which were studied as a part of the final selection process. Of the five sites under consideration only one is seriously in issue in this case. According to alternative number I, a dam would be constructed on the East Fork of Point Remove Creek. This site is nine miles north of Morrilton in Conway County, Arkansas. The dam would create a 1,000-acre lake and would require the total purchase of approximately 2,058 acres. Of all the sites studied, including the Cypress Creek site, this one would produce the highest quality water. Additionally the EIS contains letters from an engineering firm and from concerned citizens indicating that the Point Remove site has the potential for supplying water on a regional basis and that it would not only meet the needs of the City of Conway but also would serve as a source of water for Conway County. The East Fork Point Remove site was selected by the Conway County Rural Development Authority as the source for future water supply, and the Conway County Regional Water Distribution District has been formed to locate a superior source of water for the area within the district. Finally a joint venture study funded in part by the Arkansas Soil and Water Conservation Commission has been undertaken to identify a source of water for Pope, Conway and parts of Yell Counties. The EIS describes this study as follows:
As part of this study a review of all alternative solutions for a regional water supply source will be considered, including Greers Ferry Lake, the proposed reservoir for the City of Conway, a new reservoir to serve Conway County, or one large regional facility to serve the entire study area. This study is anticipated to be completed in June of 1979, and funds for preliminary subsurface investigations of the recommended sites will be requested from the Soil and Water Conservation Commission later this year.
The EIS then includes the following analysis of these various projects:
The three above projects concerned with municipal and industrial water supply are not implementable alternatives for the Conway Water Supply relocation as the terms of the authorization law are relatively explicit (see paragraph 1.01) as to the capacity of the supply. Accordingly, there could be two more small water supply lakes built in the general area; however, the timing and probability of their construction is currently unknown.
With regard to the environmental impact of the impoundment on Point Remove Creek the EIS states that the impact on wildlife would be substantially the same as that which will occur on the Cypress Creek site. However, the archeological and socio-economic impacts will be substantially less. There are no archeological sites within the area and only three families and four farms would be displaced. Furthermore the effect on agriculture would not be as great as the effect on the chosen site, as most of the land surrounding the creek is pasture or woodland. The estimated cost of constructing a dam at Point Remove Creek is $37,212,000.00 with an annual operation and maintenance cost of $157,400.00. In arriving at the cost of the Point Remove Dam, the higher delivery capacity of that impoundment was not considered. Despite the environmental evaluation the Corps rejected the Point Remove Site. In the draft EIS it was stated: This statement was further elaborated upon in the final EIS:
This alternative would probably furnish water of higher quality than any of the other sites considered. The environmental impacts of this site are slightly different from the selected site in degree due to the size of the impoundment, but in general, the impacts are very similar. Adverse social impacts of this site are not nearly so prevalent as for Site 2, Cypress Creek. Only 3 families and 4 farms would be displaced, with no public institutions involved. This alternative would also impact agricultural activity the least of the five alternatives. The site was not considered further because of the higher initial cost compared to the selected site, and the State Water Plan which states that, "Under Arkansas Case Law there can be no interbasin transfer of water without payment of damages nor without complying with the law of eminent domain where applicable." (Page 174, Arkansas State Water Plan, Main Report, Department of Commerce, Division...
To continue reading
Request your trial
-
Miller v. U.S., 80-1660
...42 U.S.C. § 4332. The district court, 1 in a concise and well-reasoned opinion, denied appellants' requested relief. Miller v. United States, 492 F.Supp. 956 (E.D.Ark.1980). We Construction of the McClellan-Kerr Arkansas River Navigation System raised the Arkansas River water level and resu......