the project as is or as might be modified with the consent of the local sponsors. Indeed, NEPA requires the termination of a contract and the adoption of an alternative when the environmental and other costs of the original project outweigh the benefits. See Arlington Coalition v. Volpe, 458 F. 2d 1323, 1332, 3 ERC 1995, 2001 (4th Cir. 1972); cf. Calvert Cliffs' v. AEC, 449 F. 2d 1109 (D.D.C. 1971). By failing to consider any alternatives other than the Project as is, or as modified to suit the local sponsors, defendants violated their NEPA obligations. B. DEFENDANTS VIOLATED NEPA BY FAILING TO DISCLOSE THEIR LIMITED CONSIDERATION OF PROJECT ALTERNATIVES The statement fails to disclose that defendants limited their consideration to only two alternatives: the project as is, or the project as it might be modified with the consent of the local sponsors. This is a signal omission in the statement." In Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971), the Court of Appeals for this Circuit stated that NEPA requires an agency to explicate fully its course of inquiry, its analysis and its reasoning. Here, the SCS has concealed its reasoning and its objectives and thereby produced a grossly misleading document. This Court has stated that a principal function of an impact statement is to provide a record of the factors considered in the agency decisionmaking process and allow those removed from the initial process to evaluate and balance the factors on their own. NRDC v. Grant, 341 F. Supp. 356, 364 (E.D.N.C. 1972). See also Calvert Cliffs v. AEC, supra, at 449, F.2d, at 1114. If defendants considered themselves contractually shackled to the project, then they had to say so in the statement. Their failure to do so, standing alone, renders the statement a nullity. V. CONSTRUCTION OF THE PROJECT WILL VIOLATE THE 1899 REFUSE ACT The statement reveals that the project will discharge considerable quantities of refuse, in the form of sediment, into the navigable waters of the Tar River. The statement discloses that: " 75 Sediment yield at the downstream terminus of channel modification immediately after construction will be approximately 11,670 tons annually. With the planned land treatment in effect and with the channels stabilized, sediment yield at the end of channel modification will be 4,010 annually. Immediately after construction, sediment yield at the confluence with the Tar River will be 730 tons annually. With the channels stabilized and with the planned land treatment in effect, sediment yield into the Tar River will be 250 tons annually. . . Yet pretrial discovery in this case has disclosed that neither defendantintervenor Pitt County Drainage District Number Nine, nor the defendants, have obtained any permit therefor, as required by the 1899 Refuse Act, 33 U.S.C. § 407. Accordingly, plaintiffs have moved for leave to amend their complaint to allege that construction of the project would violate still another Federal law, the 1899 Refuse Act. As the Court is well aware, this statute may be enforced through both criminal and civil injunctive process. The Refuse Act forbids any deposit of dirt or sand into navigable waters without a permit. We note that on August 25, 1972, the United States filed a Refuse Act complaint and motion for preliminary injunction before this Court in United States v. Owen Fulford, No. 945 Civ., E.D.N.C. New Bern Div. The Fulford complaint alleges that defendant excavated dirt and sand from certain waters and placed 74 In their comments on the draft statement, plaintiffs noted that the question of defendants' contractual obligations "is a matter of the utmost importance. going to the heart of the NEPA review, and should be discussed at length in the final statement." (Statement App., NRDC Comments, Part II. at 13.) In response, the Statement should have described not only defendants' position and the reasons for it, but also the sponsors' views regarding each alternative. If the statement is to provide a basis for assessing the costs and benefits of the various options, as required by the NEPA, then in these circumstances it must disclose which alternatives are acceptable to the local sponsors of the Project and which are not. It must also include realistic estimates of the possible liability of the SCS should it adopt an alternative unacceptable to the local sponsors. 75 Page 19. It appears that Pitt County Drainage District Number Nine is to advertise for bids and undertake construction of the Project, and will have responsibility for operation and maintenance of the Project during its useful life. "Deposition of Roy R. Beck, Tr. 18-19; cf. Intervenors' Answer to Plaintiffs' Interrogatory 25. such refuse upon the banks of the navigable waters. where the same shall be liable to be washed into such navigable waters . . in violation of . . . Title 33, United States Code, Sec. 407. . . (Complaint, Par. 3). The accompanying motion for preliminary injunction sought to prohibit such conduct.78 Here construction of the project would result in deposit and discharge of substantially greater quantities of dirt and sand into navigable waters. The statement so concedes." And yet Pitt County Drainage District Number Nine and defendants plan to construct the project without the required Refuse Act permit. There cannot be one Federal law for Owen Fulford and another for Pitt County Drainage District Number Nine. A Refuse Act permit is required for the project. In the absence of such a permit, construction should be enjoined. CONCLUSION For all of the foregoing reasons, plaintiffs' motion for a preliminary injunction, barring construction of the project until final determination on the merits, should be granted. Respectfully submitted, John G. Shaw, Clark, Clark, Shaw & Clark, 210 East Russell Street, Fayetteville, North Carolina 28302, 483-0155. Richard J. Wertheimer, Norton F. Tennille, Jr., Arnold & Porter, 1229 19th Street NW., Washington, D.C. 20036, (202) 223-3200. J. G. Speth, Natural Resources Defense Council, Inc., 1710 N Street NW., Washington, D.C. 20036, (202) 783-5710. September 20, 1972. By RICHARD J. WERTHEIMER, Attorney for Plaintiffs. CERTIFICATE OF SERVICE I, Richard J. Wertheimer, counsel to plaintiffs herein, certify that copies of the foregoing Memorandum of Plaintiffs in Support of Preliminary Injunctive Relief and the affidavits and affidavit exhibits attached thereto were served this date upon counsel for defendants and counsel for intervenors by mailing the same, postage prepaid, to the following attorneys: John R. Hughes, Esquire (3 copies), Assistant United States Attorney, Land & Natural Resources Section, Eastern District of North Carolina, P.O. Box 26807, Raleigh, N.C. 27611. Stewart Schoenberg, Esquire, Land & Natural Resources Division, U.S. Department of Justice, Washington, D.C. 20530. Charles B. Winberry, Jr., Esquire, Biggs, Meadows & Batts, 225 S. Franklin Street, Rocky Mount, N.C. 27801. Clifton W. Everett, Esquire, Everett and Cheatham, Railroad Street, Bethel, N.C. 27812. Frank W. Wooten, Jr., Esquire, 113 West Third Street, Greenville, N.C. 27834. RICHARD J. WERTHEIMER. Dated: September 20, 1972. 78 Similar complaints and preliminary injunction requests were filed on the same day in this Court against two other defendants: United States v. Sam Beacham, No. 667 Čiv., E.D.N.C. Elizabeth City Div. ; and United States v. Lawrence Owens, No. 666 Civ., E.D.N.C. Elizabeth City Div. 7 Page 19. APPENDIX 39.-COMMUNICATIONS FROM STATE AGENCIES PART A-MATERIALS SUBMITTED BY MILO (MIKE) CASEY, DIRECTOR, DIVISION OF GAME AND FISHI, STATE OF MINNESOTA DEPARTMENT OF NATURAL RESOURCES [From the Journal of Wildlife Management - Vol. 36, No. 3, July 1972] BRIEFER ARTICLES EFFECTS OF STREAM CHANNELING ON WETLANDS IN A MINNESOTA WATERSHED1 JERRY S. CHOATE, Minnesota Division of Game and Fish, St. Paul? Abstract: Over 60 miles of stream was channeled in the lower three quarters of the Hawk Creek Watershed, west-central Minnesota. The channels permitted more rapid removal of flood waters but also encouraged construction of ditches and tiles by providing improved outlets. Wetlands valuable to waterfowl and other wildlife were drained as a result. On a percentage basis, wetland loss in the lower part of the watershed was nine times greater than in the unchanneled upper quarter. This paper presents a case history of a federally assisted, stream-channeling project and resultant wetland loss in the Hawk Creek Watershed, Minnesota. Streams straightened and deepened (channeled) to remove flood waters rapidly and to improve land for agriculture under federal watershed programs encourage drainage of adjacent wetlands valuable to wildlife. These losses are seldom measured and documented. The Hawk Creek Watershed is 1 of 11 pilot watersheds established under the Flood Control Act of 1936. These watersheds were to be managed with fish, wildlife, and recreational values in mind, as well as for flood control and agricultural purposes. Funds and technical assistance were made available through the U. S. Department of Agriculture. Pilot watersheds were forerunners of those administered under the small watershed program of Public Law 83-566 passed in 1954. I express appreciation to R. Jessen, Minnesota Division of Game and Fish, who initiated the study and reviewed the manuscript. E. Huber, O. Jarvenpa, and Dr. J. 1 Supported by Federal Aid Project FW-1-R-15. 2 Present address: New Brunswick Fish and Wildlife Branch, Fredericton. 940 Moyle of the same organization, and Dr. K. Harmon, Wildlife Management Institute, provided editorial assistance. HAWK CREEK WATERSHED Hawk Creek drains 502.4 square miles (321,553 acres) in Chippewa, Kandiyohi, and Renville counties of west-central Minnesota and empties into the Minnesota River. A major tributary, Chetomba Creek, drains the eastern part of the watershed and joins Hawk Creek near the lower end (Fig. 1). Much of the watershed is excellent farmland with corn, soybeans, and small grains the principal crops. The topography is rolling to nearly level. Soils, developed from calcareous glacial till, are in the Clarion-Nicollet-Webster and Barnes-Aastad-Flom associations (Arneman 1963:5). Undrained and poorly drained depressions were originally occupied by highly productive shallow lakes and marshes. Although the number of these is unknown, it must have been considerable. STREAM CHANNELING The major feature of the watershed work plan was to channel Hawk and Chetomba (3619) STREAM CHANNELING Choate 941 creeks. The channels were designed to allow a peak discharge from a 5-year-frequency storm to occur about 3.8 hours sooner, with a 15 percent greater flow and 0.4-foot higher stage, than under previous conditions. By utilizing the altered streams for outlets, an estimated 3,558 acres of poorly drained land could be improved for agriculture for about $110 per acre. The benefit:cost ratio of the watershed program was calculated at 4.3:1 (USDA 1958). During 1962-65, 60.5 miles of channel were excavated: about 34 miles on Hawk Creek and 26 miles on the Chetomba Creek tributary (Fig. 1). Average depth was 6-8 feet with side slopes of 1.5:1. Bottom width ranged from 70 feet at the lower end to 13 feet at the upper end (USDA 1958). Wetland drainage in the watershed was ascertained from aerial photographs taken in 1955 and 1968 and by field observation. Wetland types were based on Howe and Carlson (1969), who used a slight modification of the system of Martin et al. (1953). Type 1 (seasonally flooded basins) and Type 2 (meadows) areas were excluded because they were difficult to interpret from Table 1. Number and acres of wetlands in the Hawk Creek Watershed, 1955 and 1968. |