Ocoee River Council v. TVA

• Decision Date: 03 June 1982
• Docket Number: No. CIV-1-81-100.,CIV-1-81-100.
• Citation: 540 F. Supp. 788
• Parties: OCOEE RIVER COUNCIL, et al. v. TENNESSEE VALLEY AUTHORITY.
• Court: U.S. District Court — Eastern District of Tennessee

540 F. Supp. 788

OCOEE RIVER COUNCIL, et al. v. TENNESSEE VALLEY AUTHORITY.

No. CIV-1-81-100.

United States District Court, E. D. Tennessee, S. D.

June 9, 1981.

On Renewed Motion for Summary Judgment June 3, 1982.

COPYRIGHT MATERIAL OMITTED

Charles H. Warfield, Farris, Warfield & Kanaday, Nashville, Tenn., for plaintiffs.

Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Assoc. Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, Robert C. Glinski, Melvin R. Harper, T.V.A., Knoxville, Tenn., for defendant.

MEMORANDUM

FRANK W. WILSON, Chief Judge.

This is an action against the Tennessee Valley Authority (TVA) to enjoin the construction of a hydroelectric power generation project. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1331 and is not in dispute. The plaintiffs are the Ocoee River Council, a non-profit corporation chartered under Tennessee law whose purpose is in part to promote the recreational uses of the Ocoee River; David Broemel, a citizen and resident of the State of Tennessee who uses the Ocoee River for private recreational purposes; and Sunburst Wilderness Adventures, Inc., a commercial rafting company which in its business uses the Ocoee River. The plaintiffs allege that the TVA should be enjoined from further work on the project because it is in violation of the following federal statutes: the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq.; the Federal Water Pollution Control Act (the Clean Water Act), 33 U.S.C. §§ 1251 et seq.; the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.; the Fish and Wildlife Coordination Act of 1958, 16 U.S.C. §§ 661 et seq.; and the Outdoor Recreation Act, 16 U.S.C. § 460l. A hearing was held upon the plaintiff's motion for a preliminary injunction upon April 15, 1981. The case is presently before the Court upon the motion for a preliminary injunction (Court File # 3) and the TVA's motion to dismiss, or, in the alternative, for summary judgment (Court File # 8). The foregoing motions are for decision by the Court upon the pleadings, affidavits and exhibits filed by the parties, and the briefs and oral argument of counsel.

I—Background

The Ocoee is a tributary of the Hiwassee, which is itself a tributary of the Tennessee. The river originates in the Appalachians in Union County in north Georgia, where it is known as the Toccoa. It flows in a northwesterly fashion and enters Tennessee in its southeastern-most region, in Polk County, where its name changes to the Ocoee. The drainage area of the river above its confluence with the Hiwassee covers 639 square miles and includes land in Tennessee, Georgia and North Carolina. The first dam on the river, Ocoee No. 1, was constructed in 1911 by the Eastern Tennessee Power Company approximately 12 miles from the mouth of the river. Ocoee No. 2, at river mile 24.2, was completed in 1913, and the Blue Ridge, at river mile 53, was completed in 1930. The TVA acquired these projects in 1939 and built an additional dam, Ocoee No. 3, in 1942 at river mile 29.2.

Ocoee No. 2 is the subject of this litigation. The project consists of a rock-filled timber crib dam, which can divert the river into a wooden flume that leads to a powerhouse approximately four and one-half miles downstream. The powerhouse and dam are located in Polk County, Tennessee, on a stretch of the river that is adjacent to U. S. Highway 64. When operating, the project can produce approximately 17 megawatts of power. Considering fluctuations in the streamflow caused in part by the operation of the upstream Blue Ridge project, Ocoee No. 2 can operate at maximum about 90 per cent of the time and can yield an annual production of approximately 135 million kilowatt hours. According to the plaintiffs, this is approximately seven hundredths of one per cent of the total installed system generating capacity of the TVA.

In 1976, TVA inspections showed the steel support trestles of the flumeline were in an advanced stage of deterioration, causing a safety hazard. The project was shut down in September, 1976, and has remained so since. As a result, the Ocoee has been allowed to run its natural course along the streambed. The river now provides excellent whitewater recreational opportunities, including rafting, canoeing and kayaking. The Final Environmental Impact Statement prepared by the TVA notes that the scenic attributes of the Ocoee River Gorge, the proximity of the river to area population centers, and the direct accessibility via U. S. Highway 64, qualify the Ocoee as a premier whitewater recreation stream. Whitewater use of the river began in 1977 and the TVA has estimated that the river had approximately 7,000 recreational visits that year. Such use of the river has increased dramatically and the TVA has estimated that, if the Ocoee No. 2 project is retired, there would be 50,000 or more recreational visits to the river annually by the mid-1980's.

The TVA has decided to repair the project. Pursuant to the National Environmental Policy Act of 1969, a draft environmental impact statement (EIS) was prepared and made public on August 8, 1978. The draft EIS was sent to 21 federal, state or local agencies, 19 interest groups, and 135 individuals. A public hearing on the EIS was held upon October 2, 1978, and, after comments had been received, the TVA prepared a final EIS and released it upon July 25, 1979. The final EIS listed several alternatives with regard to the reconstruction of the project, including the possibility of its retirement. In the statement's summary, the TVA made the following observation:

"Based on an analysis of the costs and benefits, the projected recreational use, and the existing environment, TVA proposes to replace the trestles and the flume, reinforce the crib dam with rock fill, and provide special releases for recreation on weekends during the summer months."

Complaint, Exhibit 1, at 3 (hereinafter cited as "EIS"). The proposed construction alternative involved the complete restoration of the crib dam, the flume and the powerhouse. The recommended recreational alternative involved the release of water from the dam on 46 days a year from May 1 through September 30, consisting of all Saturdays, Sundays and national holidays. Annual power output from the project would be diminished somewhat, however. In this connection, the EIS stated:

"The proposed program of recreational releases retains the majority of potential power and recreation benefits and represents a reasonable accommodation of recreational interests in the context of power operation."

(EIS at 24-25 (Emphasis added). Applying a multipurpose benefit cost analysis, and not viewing the project in terms of only power generation, the EIS contained the following conclusion:

"As seen from the economic analysis ..., the recreational alternative of allowing scheduled releases provides maximization of overall benefits to the public from the standpoint of power and waterborne recreation."¹

EIS at B-1.

Upon November 8, 1979, the TVA Board voted to rehabilitate the Ocoee No. 2 project. It decided not to adopt, however, the recreational alternative proposed in the final EIS. Instead, the Board voted to seek separate funding from Congress, in the form of a one-time five million dollar capital investment, to allow for 82 days of recreational releases annually. This decision was apparently the result of TVA's long-standing policy of requiring power consumers to pay only for the costs involved in producing power, but not the costs for serving recreation or other nonpower purposes. See TVA Annual Report—1979, Exhibit to TVA's Reply Memorandum, at 70. Congress rejected the appropriations request and suggested that the proposed recreational alternative be funded by the collection of user fees. H.R.Rep.No. 96-1093, 96th Cong., 2d Sess. 150 (1980).

In the instant action, the plaintiffs make several contentions. Initially, they contend that the TVA violated Section 102 of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332, by filing an inadequate environmental impact statement. The plaintiffs contend that the EIS is defective in that: (a) the final EIS circulated by the TVA showed plainly that there would be some recreational use of the river and did not mention that such use would be contingent upon separate Congressional funding or user fees; (b) the figures used in the benefit/cost ratio are incorrect; (c) the EIS fails to discuss the need for the reconstruction of the project in relation to TVA's present or potential overall capacity for the production of power; (d) there is no discussion of the cumulative effect of the elimination of this stretch of white water in connection with the elimination of other whitewater recreation areas; (e) there is no discussion of the environmental impact of the use of chromated copper arsenate to treat the wood in the flume; and, (f) the TVA failed to provide for interagency review and public comment on the proposal that the TVA Board did, in fact, adopt. Secondly, the plaintiffs assert that the TVA failed to perform its statutory duty under NEPA to adequately consider the environmental impact of the Ocoee project in reaching its decision to not allow recreational releases of water absent separate Congressional funding. Thirdly, the plaintiffs contend that the TVA is subject to the provisions of the Clean Water Act, 33 U.S.C. §§ 1251 et seq., and was required by that Act to obtain a permit from the Corps of Engineers in order to proceed with the reconstruction of the project and make any discharges into the river. The plaintiffs allege that the Corps issued such a permit to the TVA with a special condition, which specifically showed that the Corps understood that the river would be used for recreation upon completion of the project. The plaintiffs' fourth contention is that TVA's decision to rebuild Ocoee No. 2 without allowing for recreational releases absent additional funding was ...