Environmental Defense Fund, Inc. v. Armstrong

352 F. Supp. 50, 4 ERC 1760, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20735, 4 ERC (BNA) 1760, 1972 U.S. Dist. LEXIS 11130
CourtDistrict Court, N.D. California
DecidedNovember 14, 1972
DocketC-72-1057
StatusPublished
Cited by29 cases

This text of 352 F. Supp. 50 (Environmental Defense Fund, Inc. v. Armstrong) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Environmental Defense Fund, Inc. v. Armstrong, 352 F. Supp. 50, 4 ERC 1760, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20735, 4 ERC (BNA) 1760, 1972 U.S. Dist. LEXIS 11130 (N.D. Cal. 1972).

Opinion

RENFREW, District Judge.

This action arises under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (hereinafter NEPA), which requires the filing of an Environmental Impact Statement in connection with any proposed “major Federal action” which will significantly affect the quality of the human environment. The proposed action concerns a public works project known as the New Melones Dam, a 625-foot high structure across the Stanislaus River to impound 2.4 million acre feet of water. When completed, the New Melones Dam will be the second largest earth and rock-filled dam in the country. The project was authorized by Congress under the Flood Control Act of 1944, 58 Stat. 887, and re-authorized by the Flood Control Act of 1962, 76 Stat. 1173. The dam is to be completed in 1978 under the direction of the United States Army Corps of Engineers, and operated thereafter by the United States Bureau of Reclamation and the County Flood Control Associations. An Environmental Impact Statement (hereinafter EIS) was prepared by the United States Army Engineer District, Sacramento, California, in May of 1972 and revised effective June 21, 1972.

Under the original construction schedule, the main dam contract, a project valued at between 60 and 80 million dollars, including the main dam and appurtenances, was to be opened for bidding on October 10, 1972. The contract was then scheduled to be awarded on October 2'0th, with work commencing, pos *53 sibly, as soon as October 30th, ten days after the award.

Plaintiffs brought this action on June 8, 1972, seeking preliminarily to enjoin further work on the dam. Numerous party-intervenors were admitted on both sides. Finally, the hearings on the motion for a preliminary injunction and the trial on the merits were consolidated. The Court then heard testimony from Wednesday, September 27, through Saturday, September 30, 1972. At the conclusion of the presentation of evidence, a lengthy session was held in chambers on Saturday night, September 30th. At that time the Court expressed its preliminary views on the adequacy of the EIS, noting with some concern possible deficiencies in the statement’s treatment of the uses to which the conservation yield of the dam might be put. At that time the Court directed the defendants to re-examine the construction schedule with a view towards delaying the commencement of actual construction as late as possible to allow supplementation of the EIS, should the Court ultimately find the present statement to be in fact inadequate.

After the Court’s indications in chambers, the Army Corps of Engineers under the direction of Colonel James Donovan extensively revised the construction schedule and proceeded to send out telegrams to all prospective bidders, notifying them of the scheduling changes and instructing them that all bids would be received subject to those changes (the former construction schedule and the new schedule are Appendices A and B hereto, respectively). Under the revised schedule, bidding was to open on October 10, 1972, as originally planned. The awarding of the main dam contract, however, was to be postponed almost six weeks, until December 1, 1972. Issuance of the notice to proceed, permitting the contractor to begin assembling crews and equipment was then to be postponed until December 10, 1972. Most significantly, actual construction of the dam was not to begin until March 5, 1973.

In the interim, the United States Bureau of Reclamation agreed to supply supplemental data on the project to the Corps of Engineers, this material then being added to the EIS to remedy such deficiencies as the Court might find to exist. A preliminary hearing on the status of this procedure was then scheduled for November 28, 1972, with a final hearing on the revised EIS scheduled for February 24, 1973. Under this schedule the public would have time to review the final statement and present its views to the Court as to whether the EIS, as revised, conforms to the requirements of NEPA, well before any work of a permanent nature was undertaken at the construction site. In addition, the schedule afforded plaintiffs time to review the supplemental data and to pursue such remedies as they deemed necessary.

Major credit for this rapid scheduling change, allowing supplementation of EIS prior to the actual commencement of work, is to be given to Colonel James Donovan and his staff. On the shortest of notice they succeeded in altering speedily and imaginatively the schedule of work on a 60 to 80 million dollar project with no detriment to the bidders, the taxpayers, or the parties to the suit.

These scheduling changes were explained to the Court and the parties in chambers on Thursday, October 5, 1972. Final arguments on the adequacy of the EIS and on proposed findings of fact and conclusions of law were then heard on Monday, October 9, 1972, after which the Court, in accordance with the revised schedule, announced in open court that it would allow bids to be opened the following day, October 10th.

Plaintiffs Environmental Defense Fund, Inc;, et al. and plaintiff-intervenor Sierra Club seek to enjoin the letting of bids and further work on the main dam contract, contending that (1) defendants have failed to comply with the provisions of NEPA and that (2) defendants have failed to obtain permits from the California Water Resources Control Board to appropriate and divert *54 water from the Stanislaus River before proceeding with the construction of the New Melones Dam, as required by the California Water Code, § 1201 et seq., and the Federal Reclamation Act, 43 U. S.C. § 371 et seq.

Defendants Ellis Armstrong et al. and defendant-intervenors contend that they have complied with the NEPA both in spirit and in fact as required under Calvert Cliffs’ Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). Further, it is contended that even if the statement is technically deficient in some respect, the equities are such that the Court should allow work on the project to continue while the EIS is being supplemented, as was recently done in E.D.F. v. Froehlke, 348 F.Supp. 338 (W.D.Mo.1972).

I

The Stanislaus River has a recorded history of destructive flooding dating back to March, 1907, causing substantial crop, wildlife and property damage to citizens of the Stanislaus River Basin and the Saeramento-San Joaquin Delta. The original New Melones project was thus authorized in 1944 principally as a flood control project, Flood Control Act of 1944, 58 Stat. 887. Since that time, as was demonstrated at trial, substantial water demands have developed in the Basin for purposes of irrigation, fish and wildlife enhancement, power generation, and water quality control. In 1962 Congress therefore re-authorized a substantially enlarged project at the New Melones site, Flood Control Act of 1962, 76 Stat. 1173. As authorized, the dam will sit astride the Stanislaus River, impounding 2.4 million acre feet of water, making it the second largest earth and rock-filled dam in the country.

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352 F. Supp. 50, 4 ERC 1760, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20735, 4 ERC (BNA) 1760, 1972 U.S. Dist. LEXIS 11130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/environmental-defense-fund-inc-v-armstrong-cand-1972.