STATE OF MO. EX REL. ASHCROFT v. DEPT. OF ARMY, ETC., Civ. A. No. 78-3092-CV-S.

• Citation: 526 F. Supp. 660
• Decision Date: 24 December 1980
• Docket Number: Civ. A. No. 78-3092-CV-S.
• Parties: STATE OF MISSOURI, ex rel. John ASHCROFT, Missouri Clean Water Commission, Department of Natural Resources, the Missouri Conservation Commission, Dale Rountree, Max A. Smith, Calvin C. Johnson, Alton Burns, James E. Jones, Kenneth D. McCall, Ray Pinkman, Shelby A. Masters, Scott Johnson, and David Johnson, Plaintiffs, v. DEPARTMENT OF the ARMY, CORPS OF ENGINEERS, Clifford Alexander, Jr., Lt. Gen. John W. Morris, Col. Richard Curl, Defendants. Committee on Power for the Southwest, Inc., Intervenor.
• Court: United States District Courts. 8th Circuit. Western District of Missouri

526 F. Supp. 660

STATE OF MISSOURI, ex rel. John ASHCROFT, Missouri Clean Water Commission, Department of Natural Resources, the Missouri Conservation Commission, Dale Rountree, Max A. Smith, Calvin C. Johnson, Alton Burns, James E. Jones, Kenneth D. McCall, Ray Pinkman, Shelby A. Masters, Scott Johnson, and David Johnson, Plaintiffs, v. DEPARTMENT OF the ARMY, CORPS OF ENGINEERS, Clifford Alexander, Jr., Lt. Gen. John W. Morris, Col. Richard Curl, Defendants Committee on Power for the Southwest, Inc., Intervenor.

Civ. A. No. 78-3092-CV-S.

United States District Court, W. D. Missouri, S. D.

December 24, 1980.

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Robert M. Lindholm, Asst. Atty. Gen., State of Mo., Jefferson City, Mo., for plaintiff State of Mo.

Cyril M. Hendricks, Gen. Counsel, Mo. Conservation Com'n., Jefferson City, Mo., for plaintiff Mo. Conservation Com'n.

Joseph B. Phillips, Stockton, Mo., for plaintiffs landowners.

Ronald S. Reed, U. S. Atty., August V. Spallo, Asst. Dist. Counsel, Corps of Engineers, Kansas City Dist., Kansas City, Mo., for defendants.

Jay M. Galt, Oklahoma City, Okl., for intervenor.

MEMORANDUM OPINION AND ORDER

COLLINSON, Senior District Judge.

This action involves a challenge to the Army Corps of Engineers' operation of a hydroelectric generator in a dam of the Sac River near Stockton, Missouri. Plaintiffs include the State of Missouri, the Missouri Clean Water Commission, the Department of Natural Resources, the Missouri Conservation Commission, and a class of riparian landowners. Defendants are the U.S. Army Corps of Engineers (the "Corps") the Secretary of the Army, the Chief of the Corps, and the District Engineer for the Kansas City, Missouri, District of the Corps.

Plaintiffs' complaint is in four counts. Count I alleges violations of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1976). In Count II, plaintiffs allege that defendants failed to comply with the applicable provisions of the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq. (1976). In Count III, plaintiffs aver that defendants' operation of the hydroelectric power plant at Stockton Dam has been, or will be, in violation of the Federal Water Pollution Control Act, 33 U.S.C. § 1323 (1976), and the Missouri Clean Water Law, §§ 204.051.1 and 204.076, RSMo. (Supp.1975). In Count IV of their complaint, plaintiffs allege that defendants' operation of the project is inconsistent with the statute authorizing the construction of the dam. Finally, plaintiffs assert that defendants' proposed operation of the project constitutes a continuing nuisance.

This action was fully tried to the Court on April 14-23, 1980. Both parties subsequently filed post-trial briefs setting forth their respective positions, and the matter is now ready for decision.

Because resolution of the statutory issues presented by Count IV of plaintiffs' complaint may render moot most or all of the remaining questions in this action, the Court will first consider whether plaintiffs are entitled to prevail on Count IV of their complaint.

I.

A. Factual Background

The Sac River is a meandering stream flowing north from the Springfield, Missouri, area and emptying into the Osage River, a tributary of the Missouri River, in central Missouri. Like many such meandering rivers, the Sac River in its natural state provided both benefits and burdens to the people who lived nearby. The river supplied a habitat suitable to many different species of fish, and was used for such recreational activities as fishing, hunting, trapping, canoeing, and swimming. The farmers living nearby used the river to water their animals. The water was virtually unpolluted, clear and clean.

But the Sac River as it existed in its natural state from time to time posed grave dangers to man. Heavy rains resulted in bluff-to-bluff floods, inundating farmland located along the banks of the river. As the Board of Engineers for Rivers and Harbors noted in a 1949 report, "the Osage River Basin is subject to damaging floods which may occur at any time of the year as a result of intense rainfall...," and causing annual damage of over $5,000,000. House Document No. 549 (hereinafter "H.D.No. 49"), at p. 13.

Recognizing the economic and human losses caused by the periodic flooding of the Osage River Basin, in 1943 a committee of the Congress asked the Board of Engineers for Rivers and Harbors to prepare a report on the advisability of a flood control plan for that area. The Corps of Engineers for the Kansas City District accordingly conducted a study of the matter and, on January 14, 1948, submitted its report on the proposed project. The District Engineer recommended the construction of several projects in the Osage River Basin, including a dam and reservoir on the Sac River near Stockton, Missouri. He stated that operation of the proposed projects

... would be favorable for power development and studies show that installation of hydro-electric power facilities should be included as a part of initial development at the Pomme de Terre and Stockton Projects. Studies made in connection with this report indicate that an installed capacity of about 7,000 kilowatts at each of the projects could be justified under probable market conditions.

* * * * * *

The method of operation of the proposed reservoirs and the recommended power installations is based on studies of current conditions for the purpose of determining the results that might be accomplished by construction of the reservoir system and with a view toward establishment of the economic justification.... It is considered that modifications and changes in the plan of operation or size of power installation, which may later appear desirable could be made.

H.D.No.549, at pp. 27 and 30. The District Engineer accordingly recommended approval of the projects, "with such modifications and such other supplemental flood control works ... as the Secretary of the Army and the Chief of Engineers may find advisable...." H.D.No.549, at p. 31.

After a review of the study prepared by the District Engineer, the Board of Engineers sent its own report to the Chief of Engineers on April 22, 1949. In that report, the Board noted that:

Power installations of 7,000 kilowatts are provided for in the plans for Stockton and Pomme de Terre Projects and power plants could be installed at the remaining reservoir projects if found justifiable in the future.

H.D.549, at p. 14. The Board specifically concurred in the views and recommendations of the District Engineer and recommended that the proposed flood control projects for the Osage River Basin be approved "generally in accordance with the plans of the District Engineer and with such modifications and such other supplemental control works in the Osage River Basin as in the discretion of the Chief of Engineers may be advisable...." H.D.No. 549, at pp. 15-16. The Chief of Engineers concurred in the views and recommendations of the Board of Engineers. H.D.No. 549, at p. 11.

The Corps of Engineers' report was then transmitted by the Secretary of the Army to the Speaker of the House of Representatives. H.D.No.549, at p. 12. Also conveyed to the House were comments submitted by various interested agencies, including the Federal Power Commission. With respect to the Corps' proposal to install a 7,000 kilowatt generator at Stockton Dam, the FPC noted that "further studies at the definite project stage, ... may show the desirability of installing somewhat larger capacities than the 7,000 kilowatts ... now proposed." H.D.No.549, at p. 9.

Four years after receipt of the Corps' report and recommendation, Congress passed the Flood Control Act of 1954, Public Law No. 83-780, 83rd Congress. The statute provides, in pertinent part:

The comprehensive plan for the Missouri River Basin approved by the Act of June 28, 1938, and as amended and supplemented, is hereby further modified to include the project for flood protection on the Osage River and tributaries, Missouri and Kansas, substantially in accordance with the recommendations of the Chief of Engineers in House Document No. 549, 81st Congress. Emphasis added.

In the years following the passage of the Flood Control Act of 1954, the Army Corps of Engineers recommended increases in the size of the hydroelectric generator to be installed at Stockton Dam, and the Congress invariably approved funding requests for these increases. In 1959 the Corps proposed and the Congress appropriated funds for the installation of an 8,000 kilowatt generator at Stockton Dam. The following year the Corps suggested that the generator be increased to 12,700 kw, and the Congress appropriated funds for a generator of that size. In 1961 a representative of the Corps testified that it would be feasible to construct a 33,770 kw generator in the Stockton project, and Congress appropriated funds in the amount necessary. In 1962, the Corps proposed and the Congress appropriated funds for the installation of a 35,000 kw generator at Stockton Dam. The following year the Corps suggested an increase in the size of the generator, and Congress appropriated funds for the installation of a 45,200 kw generator with an overload capacity of 15% (52,000 kw). Construction of the project commenced shortly thereafter.

It was not until the fall of 1972 that the events which prompted this lawsuit took place. At that time, the Corps discovered during a test release of water from the dam that the channel capacity of the Sac River immediately downstream from the dam was less than half of what had been previously calculated. The capacity of the Sac River channel downstream of the dam had been calculated as 12,000 cubic feet per second ("cfs"); generation of the overload capacity of 52,000 kw produces discharges of up to 11,000 cfs. The 1972 test release of 6,000 cfs resulted in an overflow at several places along the Sac River. The Corps...