OKL. WILDLIFE FEDERATION v. US ARMY CORPS OF ENG.

• Decision Date: 05 January 1988
• Docket Number: No. 87-C-237-B.,87-C-237-B.
• Citation: 681 F. Supp. 1470
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: OKLAHOMA WILDLIFE FEDERATION, a non-profit corporation, Plaintiff, and State of Oklahoma, Sportsmen's Clubs of Texas, Inc., Prairie & Timber Audubon Society, Intervenors, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, Jr., as Secretary of the Army of the United States, E.R. Heiberg, III, as Chief of Engineers, U.S. Army Corps of Engineers Tulsa District, Frank M. Patete, as Tulsa District Engineer, Defendants, and North Texas Municipal Water District, and Greater Texoma Utility Authority, Intervenors.

681 F. Supp. 1470

OKLAHOMA WILDLIFE FEDERATION, a non-profit corporation, Plaintiff and State of Oklahoma, Sportsmen's Clubs of Texas, Inc., Prairie & Timber Audubon Society, Intervenors, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, Jr., as Secretary of the Army of the United States, E.R. Heiberg, III, as Chief of Engineers, U.S. Army Corps of Engineers Tulsa District, Frank M. Patete, as Tulsa District Engineer, Defendants and North Texas Municipal Water District, and Greater Texoma Utility Authority, Intervenors.

No. 87-C-237-B.

United States District Court, N.D. Oklahoma.

January 5, 1988.

Michael C. Turpen, Victor N. Bird, Richard Gann, Tulsa, Okl., for Oklahoma Wildlife Federation.

Sara J. Drake, Asst. Atty. Gen., Environmental Div., Oklahoma City, Okl., for State of Okl.

Andrew T. Dalton, Jr., Tulsa, Okl., for Sportsmen's Clubs of Tex. and Prairie & Timber Audubon Soc., intervenors.

Tony M. Graham, U.S. Atty., Peter Bernhardt, Asst. U.S. Atty., Tulsa, Okl., for U.S. Army Corps of Engineers, John Marsh, Jr., as Secretary of the Army of U.S., E.R. Heiberg, III, Chief of Engineers, U.S. Army Corps of Engineers, Tulsa Dist., Frank M. Patete, Tulsa Dist. Engineer.

Kent L. Jones, Wm. G. Bernhardt, Tulsa, Okl., M. David Bryant, Jr., Dallas, Tex., for Northern Tex. Mun. Water Dist.

Douglas G. Caroom, Austin, Tex., and Mack M. Braly, Tulsa, Okl., for Greater Texas Utility Authority.

W. Lawrence Evans, Denison Tex., for City of Denison, Tex.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRETT, District Judge.

This case was tried to the Court without a jury on the dates of November 23, 24, 25, 30 and December 1, 1987. The format of the trial was governed by the Court's Order on that subject of October 14, 1987, and the Pretrial Order dated November 20, 1987.

This action is one for declaratory and injunctive relief relative to a project to transfer reservoir water from Lake Texoma to Lake Lavon in North Texas, which is to be used for municipal and industrial water purposes. An intake structure and pumping units are to be constructed in Lake Texoma and a pipeline is to be constructed in North Texas. The U.S. Army Corps of Engineers (the "Corps" or "COE"), after a Finding Of No Significant Impact ("FONSI"), issued its permit to North Texas Municipal Water District ("NTMWD" or "District") and Greater Texoma Utility Authority ("GTUA" or "Authority") authorizing the project.

Plaintiff, the Oklahoma Wildlife Federation ("OWF" or "Federation") and Plaintiff-Intervenors, the State of Oklahoma ("State"), Sportsmen's Club of Texas, Inc. ("SCOT"), and Prairie and Timbers Audubon Society ("Society"), assert that the Corps violated the National Environmental Policy Act ("NEPA") in granting the permit without first requiring an Environmental Impact Statement ("EIS"). Plaintiffs seek declaratory relief so finding and an injunction requesting the Corps to revoke or suspend issuance of the permit until and unless an EIS on the project is completed.

The Corps and the individual Defendants deny Plaintiffs' allegations and assert that the Corps acted in compliance with the NEPA as well as asserting various affirmative defenses.

After considering the evidence presented, arguments of counsel and the applicable legal authority relative to the issues herein, the Court enters the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. Plaintiff, Oklahoma Wildlife Federation, is a non-profit corporation organized and existing under the laws of the State of Oklahoma and Section 501(c)(3) of the Internal Revenue Code. (26 U.S.C. § 501(c)(3)). Its principal office is in Oklahoma City, Oklahoma. The Federation is made up of fishermen, hunters, boaters, hikers, waterskiers and swimmers, biologists, ecologists, scientists, and naturalists dedicated to the proper management, conservation and enhancement of the natural resources of Oklahoma including, but not limited to, the conservation of lakes, rivers, wildlife, and wildlife habitats. Interests of the Wildlife Federation could be adversely affected if the Corps improperly failed to prepare an Environmental Impact Statement on this project.

2. The State of Oklahoma has interests in and around Lake Texoma relating to environmental impacts and economic impacts of this proposed project which could be adversely affected if the Corps improperly failed to require the preparation of an Environmental Impact Statement.

3. The Sportsmen's Club of Texas ("SCOT") is a Texas non-profit corporation with its principal office in Austin, Texas. Its purposes and objectives are to promote and educate in the fields of conservation, utilization, restoration, protection, and scientific supervision in the State of Texas of all game, fish, fowl, and other wildlife in its natural habitat; to promote observance and enforcement of laws for the protection of fish, game, wildlife and their habitats; to promote and influence public sentiment in favor of protection and restoration of fish, game, wildlife, and their habitat; to encourage development and wise use of the wildlife potentials of public lands and waters; to foster education of the use of Texas in areas of safety, conservation, and good sportsmanship; and to encourage purposeful production of wildlife as a valuable auxiliary by private landowners. Members of SCOT use Lake Texoma and its environs for various aesthetic and recreational and educational purposes. They also use Sister Grove Creek, Lake Lavon, and their environs for various aesthetic recreational and educational purposes. Each of these areas are areas that SCOT seeks to promote and foster conservation, utilization, restoration, protection, and scientific supervision of wildlife and habitat. The interests of SCOT and its members could be adversely affected if the Corps improperly failed to require the preparation of an Environmental Impact Statement on this proposed project.

4. The Prairie and Timber Audubon Society ("Society") is a non-profit organization organized in the State of Texas. The Society is a chapter affiliate of the National Audubon Society, Inc. The purposes and objectives of the Society are to encourage and engage in education in areas of natural history, ecology, and conservation in schools and colleges and by conducting workshops and similar activities; to promote and establish and protect and conserve wildlife habitat, and natural resources such as rivers, lakes, and streams; to support and encourage adequate laws and regulations at the state, federal, and local levels which protect life from pollution, toxic substances, and the like; to support, promote, and ensure that laws such as the National Environmental Policy Act are implemented and that national, state, and local governments engage in environmentally and economically sound land and water resources planning, conservation, protection, and management activities. The members of the Society actively use Lake Lavon and Lake Texoma for recreation and other activities associated with the purposes of the Society. The interests of the Society could be adversely affected if the Corps improperly failed to require preparation of an Environmental Impact Statement on the proposed project.

5. The City of Denison, Texas, is a municipal corporation formed according to the laws of the State of Texas, intervening herein as amicus curiae on behalf of Plaintiffs.

6. The Defendant United States Army Corps of Engineers (the "Corps") is authorized by federal law to grant or deny the subject permit herein. Certain construction and operation elements of the proposed system are subject to Department of the Army regulatory authority under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and Section 10 of the River and Harbor Act of 1899, 33 U.S.C. § 403. The discharge of dredged and fill materials into waters of the United States for backfill and bedding during construction of the pipeline stream crossings, and the placement of concrete in waters of the United States for the outfall structure and intake structure are regulated under § 404. Construction and operation of the intake structure in and over Lake Texoma, a navigable water of the United States, is regulated under Section 10. The part of the water transfer system herein requiring an individual Department of the Army permit is the intake structure and its appurtenant features in and over Lake Texoma. Discharges of dredged and fill material associated with the system into waters of the United States, other than those into Lake Texoma, may be authorized under one of several nationwide permits¹ issued by publication in the Federal Register.²

7. The Defendant John Marsh, Jr., is the Secretary of the Army of the United States. The Defendant E.R. Heiberg, III, is the Chief of Engineers, United States Army Corps of Engineers, Tulsa District. The Defendant Colonel Frank M. Patete is the Tulsa District Engineer. The Individual Defendants are proceeded against herein in their representative capacities.

8. Defendant-Intervenor North Texas Municipal Water District, is a special law district created by the Texas State Legislature to oversee the conservation, reclamation and provision of water for the North Texas area and a permittee herein.

9. (a) Defendant-Intervenor Greater Texoma Utility Authority is a special purpose governmental entity created by the Texas legislature to aid in the conservation and development of water resources in the Grayson County area and a permittee herein. GTUA supplies water to the City of Sherman, Texas, population 34,000.

(b) The City of Sherman depends entirely upon underground water from the Trinity and Woodline Aquifers as its current source of supply. The estimated reliable long term supply from this source is 9 million gallons per day. In 1980, during a drought, Sherman's daily average consumption exceeded 9 mgd. Mandatory water rationing and other conservation measures were instituted at that time. Sherman has continued...