Simmans v. Grant, Civ. A. No. 73-H-927.

• Decision Date: 22 January 1974
• Docket Number: Civ. A. No. 73-H-927.
• Parties: Eva SIMMANS et al., Plaintiffs, v. Kenneth GRANT, Administrator, Soil Conservation Service, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

370 F. Supp. 5

Eva SIMMANS et al., Plaintiffs, v. Kenneth GRANT, Administrator, Soil Conservation Service, et al., Defendants.

Civ. A. No. 73-H-927.

United States District Court, S. D. Texas, Houston Division.

January 22, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert L. Burns, Sears & Burns, Houston, Tex., for plaintiffs.

Anthony J. P. Farris, U. S. Atty., William Bowers, Charles B. Wolfe, Asst. U. S. Attys., Houston Tex., for Kenneth Grant, Earl L. Butz, William D. Davey and Frank B. Elliott.

Bill M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, Tex., for Brazos-Robertson Soil and Water Conservation Dist. and Brazos County Water Control and Improvement Dist. No. 1, Big Creek.

MEMORANDUM AND OPINION

CARL O. BUE, Jr., District Judge.

I. The Environmental Contentions

The plaintiffs bring a class action against the defendants, particularly the Soil Conservation Service (SCS) of the U. S. Department of Agriculture,¹ seeking to enjoin further construction of a channel improvement project located in Brazos County, Texas. It is alleged that the defendants have failed to comply with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4331 et seq., by reason of their failure to prepare an environmental impact statement. The law is still developing regarding the duties and responsibilities of federal agencies with respect to "negative declarations", those determinations that the environmental aspects of a project are so slight that a detailed impact statement is not compelled by NEPA. As the opinion will indicate, this Court concludes that no impact statement is required. However, because of the failure of the SCS to prepare an adequate negative declaration, some equitable relief is required and granted.

The channel improvements being challenged involve the Big Creek Slough in Brazos County, Texas. In its natural state the Slough is a well defined depression in the bottomlands between the Navasota and Brazos Rivers. It drains water from some surrounding fields and higher lands into the Navasota River which, in turn, empties into the Brazos River. Part of the project involves construction of a reservoir, known as Big Creek Watershed Site 6, which will cover an estimated 8 to 30 acres of land and for which a reservoir excavation contract totaling $75,000 has been awarded. The part upon which the plaintiffs focus primary attention involves a proposed deepening of the natural channel in Big Creek Slough and its laterals over a total length of approximately 11 miles accompanied by the placement of grade stabilization structures to facilitate the runoff of water. The natural stream bed will generally be lowered 3 to 7 feet and widened in some areas. The channel width will vary from a minimum of 6 feet to a maximum of 40 feet. The channel walls will have an inside slope of 2:1 with an outside slope of 10:1 for stabilization. The maximum width of the channel across the top will be approximately 80 feet with additional "spoil" areas erected on each side for structural stabilization. Such spoil areas from which ground foliage is stripped and on which reinforcing soil is placed will vary in width from 70 to 240 feet. At some locations the spoil reportedly is to be placed primarily on one side only where the SCS seeks to avoid damage to particular stands of trees. A total of approximately 237 acres of land will be cleared for the project for which a channel excavation contract of approximately $220,000 has been awarded. The SCS is to bear all costs initially, subject to reimbursement for 11.25 percent of the channel improvements on the Slough and 25.80 percent on the laterals by the Brazos-Robertson County Soil Conservation District (the District) in a manner not revealed in the record.

Testimony was heard for two full days by this Court² during which time substantial evidence regarding the expected environmental impact of the proposed projects was presented. Along the Slough are numerous stands of trees which grow in or immediately adjacent to the channel. These areas generally provide habitat for a variety of fauna, provide some hunting benefits, and also reportedly provide shade for cattle raised by some plaintiffs, this shade being characterized as essential for proper livestock development. The Slough is generally devoid of water although some retention occurs behind a beaver dam and at several low points in the channel bed, certain of which are man-made. Minimal fishing benefits are provided for fish which are trapped or stocked in the various water holes.

The particular points of contention between the parties are surprisingly few. The plaintiffs contend that the project would eliminate virtually all of the stands of trees, pointing out that the construction contract awarded does not identify or discuss preservation of such trees. Ergo, it is claimed that virtually all fauna related to that habitat would be imperiled. The plaintiffs object to the elimination of the water-collection points, which are utilized by cattle, as well as the elimination of several low-water crossings used by cattle and vehicles. Most of these crossings are constructed of large steel pipes laid lengthwise in the stream bed and covered by dirt, although apparently one crossing is an uncovered wooden bridge. It is alleged by the defendants, without documentary support, that the District has agreed to build a total of six 40,000 pound capacity bridges across the Slough at sites designated by plaintiffs and at no cost to them. The plaintiffs contend that the District does not have the financial resources to build the bridges in the immediately foreseeable future, and they have submitted copies of District financial records which appear to support this contention. The plaintiffs further criticize the defendants for their failure to utilize proper procedures in arriving at a reasonable environmental conclusion. They contend that the environmental assessment was limited to a view of the fish and wildlife habitat, while omitting serious consideration of such environmental problems as sedimentation, insecticide and herbicide transmission into the Navasota River (draining off farmlands surrounding the Slough), and the effect of the project on adjoining land and landowners.³ Substantially the same argument is raised by the Natural Resources Defense Council, appearing amicus curiae by leave of Court, which also claims that alternatives to this project have not been fully considered by the SCS.

The defendants disagree with the various characterizations advanced by the plaintiffs. While not conceding that the project is a "major Federal action", they contend that there will be no "significant" environmental impact, thus eliminating the obligation to prepare an impact statement.

II. The SCS Project History

The original workplan for the channel and reservoir projects was completed by the District and SCS in June, 1962,⁴ with minor revisions being made in 1966.⁵ The project was to be constructed under the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1001 et seq. In February, 1971, following the passage of NEPA, the SCS issued Watershed Memorandum-108 (WS-108) entitled "Guidelines for Planning and Review of Channel Improvement". These guidelines were to be used for evaluating projects approved, but not yet installed. They provided, in part:

Channel improvement is to be planned and carried out with minimum losses to fish and wildlife habitat . . . . Losses are to be minimized by (1) selecting measures that are least damaging to habitat, (2) incorporating design features to reduce the damaging effect of the measures, (3) locating measures to avoid areas of high habitat value, (4) using construction methods that minimize disturbance and destruction of habitat, (5) vegetating denuded areas as quickly as practical, and (6) operating and maintaining measures in a way that is least damaging to the habitat. Unavoidable losses are to be mitigated to the maximum practicable degree. Plans should provide the same degree of certainty that mitigation measures will be installed, operated, and maintained as they do for other structural measures.⁶

Following the requirements of WS-108, the State conservationist, the ranking SCS official for Texas, appointed a project reviewing committee⁷ to consider each project within the State, classifying them either in Group 1 (minor or no known adverse environmental impact), or Group 2 (some adverse impact), or Group 3 (serious adverse impact). According to testimony presented at the hearing, it was the belief of Texas SCS officials in 1971 that WS-108 compelled preparation of environmental impact statements only for Group 3 projects and for those particular projects in Group 2 believed to warrant it on a case by case determination.

On March 26, 1971, the Texas State Conservationist distributed to all Texas Area Conservationists certain instructions requiring the completion of an environmental questionnaire for each planned channel improvement project.⁸ The questionnaires, which were intended to aid compliance with the review requirements of WS-108, were to be completed and returned no later than May 7, 1971. This timetable allowed less than 46 days for what was essentially the environmental re-assessment of all channel improvement programs within Texas. The completed questionnaire on Big Creek Watershed Channel Improvement, dated April 27, 1971,⁹ was accomplished by a person or persons unknown who reportedly made an on-site inspection. It was reported that the project would cause no adverse effect upon wildlife, fishing or habitat. The only impact noted was that approximately 40 percent of the trees in the flood plain would be destroyed, these consisting mostly of willow trees in the channel bottom. Testimony at the hearing, including that of SCS officials, rebutted the report's conclusions in several material respects. Without detailing the...