Warm Springs Dam Task Force v. Gribble

• Decision Date: 23 June 1980
• Docket Number: No. 77-2301,77-2301
• Citation: 621 F.2d 1017
• Parties: , 10 Envtl. L. Rep. 20,559 WARM SPRINGS DAM TASK FORCE et al., Plaintiffs-Appellants, v. Lieutenant General William C. GRIBBLE, Jr., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1017

621 F.2d 1017

14 ERC 1744, 10 Envtl. L. Rep. 20,559

WARM SPRINGS DAM TASK FORCE et al., Plaintiffs-Appellants, v. Lieutenant General William C. GRIBBLE, Jr., et al.,

Defendants-Appellees.

No. 77-2301.

United States Court of Appeals, Ninth Circuit.

June 23, 1980.

Wm. R. Shepard, McCarthy, Johnson, Miller & Shepard, San Francisco, Cal., Leslie R. Perry, Luke, Libicki & Perry, Santa Rosa, Cal., argued, for plaintiffs-appellants.

Rodney H. Hamblin, Asst. U. S. Atty., San Francisco, Cal., Jacques B. Gelin, Washington, D. C., argued, Richard Ergo, Deputy County Counsel, Santa Rosa, Cal., on brief, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, KENNEDY and HUG, Circuit Judges.

PER CURIAM:

This case involves the adequacy of an Environmental Impact Statement (EIS), as supplemented, prepared by the Army Corps of Engineers for the construction of Warm Springs Dam in Northern California. The central issue is whether the Corps was required to supplement its EIS further when it became aware of a U.S. Geological Survey (USGS) study indicating that the Maacama Fault, which at its closest point is six miles from the dam, might be capable of generating an earthquake of greater magnitude than the dam was designed to withstand.

The case is on appeal from the district court's denial of a permanent injunction against further construction on the project. Appellant is the Warm Springs Dam Task Force (Task Force). We affirm.

I. HISTORY OF LITIGATION

The Warm Springs Dam is designed to be a 319-foot earth-fill dam across Dry Creek, a major tributary of the Russian River in Sonoma County, California. The dam would create Lake Sonoma, with a surface of 3,600 acres and a storage capacity of 381,000 acre-feet of water, and would serve the combined purposes of flood control, water conservation and recreation. The dam site is located on the inactive Dry Creek earthquake fault. Several active faults, including the San Andreas Fault, the Healdsburg Fault and the Maacama Fault, pass within several miles of the dam site.

Congress authorized construction of the Warm Springs Dam by the Army Corps of Engineers in the Flood Control Act of 1962, Pub.L.No. 87-874, § 203, 76 Stat. 1173, 1192 (1962). Following the enactment of NEPA, which took effect in 1970, the Corps prepared an EIS for the dam project. The EIS was released in final form in 1973.

In 1974, the Task Force attacked the adequacy of the EIS on several grounds and brought an action in the district court to enjoin further construction. The district court found that the EIS fully complied with NEPA and denied the motion for the injunction. Warm Springs Dam Task Force v. Gribble, 378 F.Supp. 240 (N.D.Cal.1974). A request for an injunction pending appeal was denied by the district court and by this court, but an injunction was granted by Mr. Justice Douglas, sitting as a Circuit Justice. Warm Springs Dam Task Force v. Gribble, 417 U.S. 1301, 94 S.Ct. 2542, 41 L.Ed.2d 654 (Douglas, Circuit Justice, 1974), motion to vacate stay denied, 418 U.S. 910, 94 S.Ct. 3202, 41 L.Ed.2d 1156 (1974). On appeal, we remanded for reconsideration of the issues of seismic safety and water quality, in an unpublished order, on August 18, 1975. The injunction preventing further construction remained in effect pending the district court hearing.

Prior to the new hearing in the district court, the Corps prepared a Supplement to the Final Environmental Impact Statement (S-EIS), addressing the problems of seismic safety and water quality. In the new hearing, the district court concluded that the S-EIS complied with NEPA and the court therefore denied the Task Force's motion for a permanent injunction. Warm Springs Dam Task Force v. Gribble, 431 F.Supp. 320 (N.D.Cal.1977). It is from that judgment that the Task Force now appeals. The Task Force in this appeal limits its objections to the questions of seismic safety and does not persist in the contentions regarding water quality.

The district court and this court denied a motion brought by the Task Force for an injunction pending appeal, Warm Springs Dam Task Force v. Gribble, 565 F.2d 549 (9th Cir. 1977), and this court has since denied the Task Force's motion for a stay pending disposition on the merits.

II. ISSUES PRESENTED

The Task Force challenges the adequacy of the S-EIS on several grounds, raising the following issues:

1. Did the Corps have a duty to obtain the USGS's written comments prior to filing its final S-EIS?

2. Must the S-EIS be revised in light of new evidence developed by the USGS concerning the seismic safety of the dam?

3. Does the S-EIS adequately discuss the consequences of surface displacement on the Dry Creek Fault?

4. Must the S-EIS include a discussion of the consequences of catastrophic failure of the dam?

In addition to raising the procedural issues relating to the adequacy of the S-EIS, the Task Force attacks the substantive decision of the Corps to proceed with the project. That challenge raises the question of whether the decision to build the dam should be set aside as arbitrary, capricious or an abuse of discretion.

III. FACTS

Following the 1974 litigation and the remand by this court for consideration of the issues of seismic safety and water quality, the Corps commenced preparation of the supplement to the EIS. The Corps hired the private firm of Dames and Moore to conduct a "dynamic analysis" of the dam to test the seismic safety of the design. The process involved constructing a model of the dam in a laboratory and subjecting it to simulated earthquakes that would represent "the maximum credible earthquakes" the dam would be required to withstand.

The tests conducted by Dames and Moore were based on the assumption that the faults that could generate earthquakes having the greatest destructive force on the dam were the San Andreas Fault, which is nineteen miles from the dam and which could generate an earthquake of a magnitude of 8.3 on the Richter Scale, and the Healdsburg Fault, which is two miles from the dam and which could generate an earthquake of a magnitude of 7.0 on the Richter Scale. Dames and Moore did not consider the Maacama Fault, which is six miles from the dam, because that fault was believed to extend no more than twenty-six miles and was thus capable of generating a maximum credible earthquake of only 6.6 on the Richter Scale; the resulting destructive force of such a quake would be less than that which could be generated by quakes on either the San Andreas or the Healdsburg Faults. Dames and Moore also determined that the maximum credible earthquake of 7.0 on the Healdsburg Fault would cause less destructive force on the dam than would the maximum credible earthquake of 8.3 on the San Andreas Fault. The maximum destructive force that the dam must be engineered to withstand was thus determined to be an earthquake of 8.3 on the San Andreas Fault, with the reservoir filled to the maximum water level behind the dam.

The Corps circulated its draft of the S-EIS in May 1976, requesting comments from interested parties and agencies. The USGS was one of the agencies formally requested to submit comments, but it filed no written response. The Corps distributed its final draft of the S-EIS, incorporating all comments received, in September 1976.

During the Corps's preparation of the S-EIS, Dr. Darrell G. Herd, a geologist with the USGS, was mapping the faults of the Northwest San Francisco Bay Region, including the dam site. He testified at trial that he had submitted his conclusions in draft form for review within the USGS in April 1976, one month before publication of the draft S-EIS and five months before distribution of the final S-EIS.

Dr. Herd further testified that his study revealed that the Maacama Fault, which previously had been thought to extend a distance of about 40 kilometers (25 miles), ¹ appeared to extend at least 110 kilometers (68 miles) and could extend 230 kilometers (143 miles). Dr. Herd also suggested that it was possible, although highly unlikely, that the Maacama Fault could be part of a great en echelon fault system that could extend Dr. Herd admitted that his mapping did not extend far enough to the north to indicate fully the length of the Maacama Fault. He stated that for a more accurate assessment of the earthquake hazard presented by the Maacama Fault, geologic mapping must be undertaken to determine the extent of the northward continuation of the Maacama Fault.

470 kilometers (292 miles) and could rupture as one continuous fault system.

IV.

DISCUSSION

A. Consultation with and Comments by USGS

Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), provides that prior to making the environmental impact statement,

the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.

(emphasis added). Appellant claims the Corps violated NEPA by failing to obtain written comments from the USGS prior to publication of the S-EIS. If the Corps had obtained these comments, appellant contends, it would have been made aware of Dr. Herd's studies and might have halted construction of the dam.

The Corps concedes that the USGS is an agency having special expertise in geology and seismic activity within the meaning of the statute and that the Corps did not obtain written comments from the USGS. ² However, it contends the Corps fulfilled its statutory duty because: (1) it consulted informally with USGS personnel in preparing the S-EIS; and (2) it sent a copy of its draft S-EIS to the USGS, specifically soliciting the agency's comments.

Section 4332(2)(C) is designed to attract knowledgeable agency comment on the environmental issues raised by proposed federal projects. By requiring the proposing agency to consult with and obtain comments from agencies...