Conservation Council of North Carolina , et al. v. Robert Froehkle, et al. - Findings of Fact, Conclusions of Law and Opinion

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE
DISTRICT OF NORTH
DURHHAM DIVISION

CONSERVATION COUNCIL OF NORTH
CAROL I NA , JAME S Cu WALLACE,
PAUL E. FEARINGTON and wife,
RUBY B. FEARINGTON , AGNES M.
SPARROW, and EGOS, INC., et al,
Plaintiffs
v. NO. C--184--D-71

ROBERT F . FROEHLKE, Secretary
of the Army; LIEUTENANT GENERAL
FREDERICK B. CLARK, Chief of
Engineers, Corps of Engineers
of the United States Army; and
COLONEL ALBERT COSTANZO,
Wilmington District Engineer,
Corps of Engineers of the
United States Army,
Defendants

THE CITY OF FAYETTEVILLE , a
municipal corporation and
CUMBERLAND COUNTY, a political
subdivision of the State of
North Carolina,
Intervenors

THE CITY OF WILMINGTON, a
municipal corporation;
NEW HANOVER COUNTY, PENDER,
COUNTY, COLUMBUS COUNTY,
political subdivisions of
the State of North Carolina;
and THE LOWER CAPE FEAR
WATER AND SEWER AUTHORITY,
a public instrumentality of
the State of North Carolina,
Intervenors

THE CITY OF DUNN and THE
TOWNS OF ERWIN and LILLINGTON ,
municipal corporations, and
HARNETT COUNTY, a political
subdivision of the State of
North Carolina,
Intervenors

THE CITY OF SANFORD, a
municipal corporation,
Intervenor

FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION

GORDON, Chief Judge

This case represents a continuation of a relatively
new and growing subject of federal court litigation relat-
ing to the effect of man's projects upon his environment.
More specifically, this matter is before the Court for
review of the Army Corps of Engineer's decision to proceed
with the impoundment of the B. Everett Jordan Lake. For
the reasons which follow, the Court sustains the Corps'
decision to impound the B. Everett Jordan Dam.

I. PROJECT

The B. Everett Jordan Dam Project lies near the
central eastern edge of the North Carolina Piedmont Plateau.
The proposed reservoir is to be located at the confluence
of the Haw and New Hope Rivers approximately twenty miles
south of Chapel Hill, North Carolina, and just northeast
the town of Haywood, North Carolina. The project area
includes portions of four central North Carolina counties ----
Chatham, Durham, Orange, and Wake.

On December 30, 1963, Congress enacted Public Law
88-253 authorizing funds for a multipurpose dam for flood
control, water supply, water quality control, general
recreation, and fish and wildlife enhancement. Ground-
breaking for the actual construction of the dam occurred
on December 7, 1970.

The project consists of a 112 foot high, 1,300 foot
long earth-fill dam. The proposed impoundment will have a
flood-control storage capacity of 183,012 acre-feet with
a maximum pool depth at the top of the conservation pool of

2.

58 feet. A multilevel intake tower is located at the up-
stream face of the dam to control the quality of low flow re-
leases.

The impounded water will cover a surface area of
14,300 acres and will come from two primary sources, the
Haw River and the New Hope River. The Haw River is a
swiftly moving river with a narrow valley and a steep
stream gradient. The New Hope River, the largest tributary
of the Haw River, is a slow-moving river with a comparatively
wide flood plain and a gentle stream gradient. The New
Hope joins the Haw three -tenths of a mile above the dam site.
Due to the difference in stream gradients, ninety per_.cent
of the impoundment will be in the New Hope basin, but the
water supply will -be primarily from the more swiftly flow-
ing Haw River. If filled, the 14,300 acre lake will have
a unique circulation pattern which is attributable to the
fact that eighty per cent of the average annual flow will
come from the Haw River while more than eighty-five per
cent of the volume of the lake will be on the New Hope.
Consequently, during periods of high flow following heavy
rains, water from the Haw River will flow to the New Hope
.arm of the lake.

The project area includes a total of approximately
47,000 acres of land. As previously stated, some 14,300
acres of that total will comprise the actual lake region
created by the .impoundment of. the B. Everett Jordan Dam.
At present, approximately 31,000 acres of the 47,000 acres
included in the project area are under. lease to the North
Carolina Wildlife Resources Commission for use in the

3.

state's game land program pending the ultimate determination
of this litigation. After the lake is created, approxi-
mately 33,000 acres of the project will remain above water
for non-water recreational and conservation uses.

Due to the presence of certain man-made structures
in and around the lake, the quality of the water in the
lake will be different from one location to the next. Con-
sequently, the lake has been divided into four segments.
The first division is between the inundated areas on the
Haw River and the New Hope River; that is, Segment I will
consist of the area covered by the Haw and New Hope River
from the dam to the constriction. The two rivers feeding
the reservoir will create two arms within the lake. In
addition, two major road crossings on the New Hope arm;
namely, Highways 64 and 1008, were constructed with very
small openings relative to the length of the crossings.
These barriers will restrict the mixing and flow of water
in the New Hope arm of the reservoir, thus creating three
additional segments within the lake. Segment II encom-
passes the lake region of the New Hope from the constriction
to Highway 64. Segment III lies between High 64 and High-
way 1008 on the New Hope. Segment IV consists of the
remaining inundated region on the New Hope above Highway
1008. Segment IT will cover the largest area of land,
followed in size by Segments III, IV, and I respectively.

The lake that will be created by the impoundment of
the B. Everett Jordan Dam will provide the surrounding area,
both above and below the dam site, with the benfits of
flood control, water quality control, water supply, fish
and wildlife conservation and recreation. Additionally,

4.

the remaining approximately 33,000 acres of land in the
project will support extensive non-water recreation and
wildlife and plant conservation.

II. HISTORY OF CASE

On August 10, 1971, the Conservation Council of
North Carolina (CCNC) brought suit seeking injunctive and
declaratory relief against the construction of the New
Hope Dam by the United States of America acting through the
Army Corps of Engineers. The plaintiff alleged that the
dam project did not comply with the requirements of the
National Environmental Policy Act of 1969 (NEPA) and re-
quested that the defendants be enjoined from proceeding
further with the project. After a hearing on the plain-
tiff's motion for preliminary relief, the Court denied the
motion. This denial of the motion for a preliminary
injunction was affirmed by the Fourth Circuit Court of
Appeals.

Subsequent to the filing of this action, numerous
parties moved for permission to intervene in the action.
Among those seeking intervention were the upstream cities
of Durham and Chapel Hill, and the downstream city of
Fayetteville. The Court allowed the intervention of these
and other parties to this action so that their claims
might be presented and the matter decided with the benefit
of all the information these parties desired to present.
Presently, there are motions pending to dismiss Durham
and Chapel Hill from this action.

Shortly after the Court's denial of the plaintiff's
request for preliminary relief, cross motions for summary
judgment were presented to the Court. The Court granted

5.

the defendant's motion and dismissed the case. On appeal,
the Fourth Circuit found the basic issue to be "whether
the District Court had an obligation to review the sub-
stantive merits of an agency decision. . .or whether the
Court discharges its proper function by merely determining
that the agency has acted in a procedurally correct manner;
i.e., on the basis of a reasonably, sufficient 'impact
statement.'" CCNC v. Froehlke, 473 F.2d 664 (4th Cir.
1973). The Court of Appeals, concluded that the District
Court must engage in a substantial inquiry to determine
whether there had been a "clear error of judgment."
Accordingly, the case was remanded to this Court with
directions to consider the merits and review the substantive
findings of the agency.

A Pre-trial Order was formulated by the parties to
delineate the scope of the trial. However, rather than
proceeding to trial, the parties agreed to, and this Court
signed, a Consent Judgment on February 5, 1974.

The Consent Judgment, by its explicit language,
settled all matters and things in controversy between the
parties subject to several very narrow limitations. The
Judgment eliminated the controversy over the actual con-
struction of the dam facility. Consequently, the defen-
dant proceeded to complete, and did in fact complete, the
construction of the B. Everett Jordan Dun. However, the
Judgment prohibited the clearing of the reservoir site for
the creation of the lake. The creation of the conservation
pool was prohibited limited only by the necessary backing-.
up of waters for flood protection needs. Additional water
quality analysis was suggested for water quality criteria,

6.

together with continued monitoring of solids and nutrients
moving on the stream beds below the water column in flood
loads, and with monitoring of heavy metal concentrations
in fish life. Other additional studies were prescribed
for evaluation of the project's effect on forests, and
other plant life, fish, birds, mammals, mosquitos, silt
deposits and sediments, above and below the dam.

The data collected waseto be contained in a draft
of the supplement to the final environmental impact state-
ment and filed with the Council on Environmental Quality.
A forty-five day review and comment period after publication
was required.

The Judgment provided, that at any time after com-
pliance with the provisions of the Judgment, that the defen-
dants could file notice of their decision to create the
B. Everett Jordan Lake (permanent conservation pool). Any
party opposing this decision was required to file a
response within thirty days or beeforever barred by the
Judgment. The Consent Judgment provided that the opposi-
tion must state specifically the factual and legal grounds
for their objection and placed the burden on them to show
that the defendant's decision to impound was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.

On September 15, 1976, after compliance with all the
terms and conditions of the Consent Judgment, the District
Engineer for the Wilmington District, U. S. Army Corps of
Engineers published a "Notice of Decision to impound."
In a thorough and comprehensive manner, Colonel Homer
Johnstone, the District Engineer, balanced the benefits
and detriments of the proposed impoundment and concluded

7.

that the closure of the gates and impoundment of the waters
would best serve the public interest.

On October 12, 1976, the Conservation Council of
North Carolina filed its response to the defendant's
"Notice of Decision to Impound" the B. Everett Jordan Dam.
According to the terns of the Consent Judgment, the CCNC
set forth their specific objections to the Army's decision.
In general, CCNC contends that the defendant's decision to
impound the waters was not based on a consideration of
environmental factors, and further, was arbitrary and
capricious and a clear error in judgment. In support of
this contention, CCNC points to specific areas within the
defendant's supplemental studies, which CCNC contends,
clearly indicates that the lake will be unsuitable for
water supply, recreation or fishing. Accordingly, CCNC
insists that any decision to impound should be overruled
by the Court. CCNC asserts that it is not opposed to
impoundment at any time, only, that such a decision should
await the results of additional studies, which CCNC con-
tends are necessary, to establish that the lake will
definitely support a suitable water supply, recreation, and
fishing habitat.

CCNC's specific objections will be discussed later
in detail, however, their general objection may be
characterized as centering on the quality of the water to
be contained in the proposed impoundment.

On October 14, 1976, the intervening plaintiff, the
City of Durham, filed its response to the Corps' decision.
Durham asserts that it does not oppose the creation of a
clean lake. However, Durham contends that the evidence

8.

clearly establishes that the proposed lake is likely to be
a shallow, motionless body of water unsuitable for its
intended uses. More specifically, Durham contends that it
will have to incur substantial expenses to provide addi-
tional waste-water treatment for the water it discharges
into the streams feeding the lake from its waste-treatment
plants. Durham states that this additional treatment will
be required solely because of the presence of the lake.
Accordingly, Durham contends that this increased cost
should have been considered in the cost/benefit ratio,
and, apparently, that this fact was not considered by the
Army in its decision. Consequently, Durham contends that
this increased cost is a factor the Army should have con-
sidered, and further, that this cost should be borne by
the United States.

On October 15, 1976, the intervening plaintiff, the
town of Chapel Hill, filed its response to the decision to
create the B. Everett Jordan Lake. Chapel Hill's objections
cover the same areas mentioned in the responses of CCNC
and Durham. Chapel Hill's specific objection is directed
at the alleged additional expense it may incur for the
removal of phosphorus from its waste-water effluent.

By way of summary, the plaintiffs' objections center
on two propositions: (1) that the quality of the water in
the proposed lake will be unsuitable for its intended use,
and (2) that the Army failed to consider the alleged cost
to Durham and Chapel Hill for the removal of phosphorus
from its waste treatment effluent.

On November 1, 1976, the parties signed, and the
Court approved, a Final Pre-trial Order designating the
scope of the review hearing to be held in this matter.

9.

III. PARTIES AND ISSUES

The parties are in agreement that the contested
issue to be tried by the Court is as follows: Whether the
decision of the defendant to impound water and create the
permanent Be Everett Jordan Lake was arbitrary, capricious,
abusive of agency discretion, or otherwise not in accordance
with law.

Inasmuch as this controversy was settled by the
entry of a Consent Judgment subject to being re-opened by
the filing of objection to the defendant's "Notice of
Decision to Impound," the only parties before the Court in
this action and contesting the Corps' action are those
that have filed objections to the Corps' decision. As to
those parties not filing a response to the Army's decision,
this action is closed. Accordingly, the only party plain-
tiffs remaining in this action are the Conservation Coun-
cil of North Carolina, the City of Durham, North Carolina,
and the Town of Chapel Hill, North Carolina.

The contentions presented by the parties as they
relate to the issue before the Court will be discussed be-
low. As to those issues the Court will make additional
findings of fact. However, before proceeding to the merits
of the case, the Court should first specify its role,
function, and authority in this case.

IV. SCOPE OF REVIEW

The unequivocal intent of NEPA is to require agencies
to consider and give effect to the environmental goals set
forth in the Act, not just to file detailed impact studies
which will fill governmental archives and add weight to the
Court's file in this case. Environmental Defense Fund v.
Corps of Engineers of the United States, 470 F.2d 289 (8th

10.

Cir. 1972). To this end, the Court is required to conduct
a substantial inquiry to determine whether the agency acted
within the scope of its authority and whether its decision
was within the range of choices available. Accordingly, the
Court is required to find that the actual choice made by the
agency was not arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law and that the agency
followed the necessary procedural requirements. Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct.
814, 28 L.Ed.2d 136 (1971).

In Coalition for Responsible Regional Development v.
Coleman, No. 76-1400 (4th Cir. April ll., 1977), F.2d
(4th Cir. 1977), the Fourth Circuit addressed the
scope of the substantial inquiry which the District Court
must engage in in evaluating the propriety of agency action
in environmental cases. Although arising under S4(f) of
the Transportation Act, the Court stated that the standard
for judicial review of an administrative decision is the
same whether arising under NEPA or the Transportation Act.
Coleman, supra.

The test is two-prong: First, the Court is to con-
sider whether the agency acted within the scope of its
authority (the parties all agree that the Corps' action
was within the scope of its authority and in conformity
with all procedural requirements), and secondly, to deter-
mine whether the ultimate decision (impoundment) was arbi-
trary, capricious, an abuse of discretion, or otherwise
not in accordance with law. Overton Park, supra; Coleman,
supra. In applying the arbitrary standard, the Court must
engage in a substantial inquiry in order to determine
whether the agency, in its conclusions, made a good faith

11.

judgment after considering all relevant factors, including
possible alternatives or mitigative measures.

In passing on the "good faith" aspect of an adminis-
trative judgment, the Court is specifically not empowered to
substitute its judgment for that of the agency. Overton
Park, supra at 415, 416; Coleman, supra. Accordingly,
the Court is not to make the ultimate decision but only
to see that the official or agency took a "hard look" at
all relevant factors. Consequently, the power of judicial
review in this area is a narrow one to be applied within
reason, and in essence is confined to a determination of
whether the administrative decision represented a clear
error of judgment. Environmental Defense Fund, supra; at
300; Coleman, supra.

In determining whether the agency decision repre-
sented a clear error of judgment the Court is not to be
led into construing the mandating statutes in NEPA as a
device to be used as a crutch for chronic faultfinding and,
it is not to fault the agency for failure to consider "an
alternative whose effect cannot be reasonably ascertained,
and whose implementation is deemed remote and speculative."
Coleman, supra. The agency is only required to set forth
those alternatives sufficiently to permit a reasoned choice.
Brooks v. Coleman, 518 F.2d 17, 19 (9th Cir. 1975).
The agency decision must be based upon a consideration
of relevant environmental factors and public policy. Con-
sideration of irrelevant factors with disregard or indiffer-
ence to relevant factors opposing the decision is strong
evidence of a clearly erroneous decision made in bad faith.
In sum, so long as the Court, in its review, observes the

12.

rule of reason and practicality and takes a "hard look" at
the relevant factors, it performs its obligation under the
Act. Coleman, supra.

The Court concludes that its role under NEPA is
not only to see that the government agency had complied
with all the procedural requirements, but also to engage in
a substantial inquiry to determine whether there has been a
clear error of judgment. It is absolutely essential that
the Court not substitute its own subjective judgment for
that of the agency, for Congress has given that authority
to the agency. Rather, the object of the inquiry is to
enable the Court to make its own determination of whether
the agency's decision was arbitrary and capricious when
viewed in terms of the data, information, and evidence
supplied and set forth in the EIS and at trial.
With the scope of this inquiry sufficiently stated,
the Court now makes findings of fact as follows:

V. FINDINGS OF FACT ON THE NARROWED ISSUES

After a thorough examination of the proposed findings
of fact submitted by the parties to the Court, the Court
concludes that it is appropriate to adopt portions of the
defendant's findings in their entirety. The Court believes
that some brief explanation is in order explaining why it
has adopted the defendant's method of presenting the facts
in this case.

The plaintiffs' proposed findings of fact incorporate
much of the data set forth in the various environmental
impact statements and exhibits before the Court. On the
other hand, the defendant's findings of fact set forth the
data described in the various records in summary form and
concentrate on the evidence from the experts as to the

13.

conclusions to be drawn from those facts. Inasmuch as the
parties are not in any substantial disagreement over the
type of testing performed, the manner the tests were con-
ducted, or the sufficiency of the data collected from those
tests, and further, the fact that all of the tests and
data accumulated therefrom appears fully in the EIS and
exhibits to the Court, it is concluded that a restatement
of those facts is unnecessary. The task before the Court
is to determine whether the Corps fully considered all the
data collected from the tests and considered all other
relevant data before it. With few exceptions, which will
be discussed later, the plaintiff does not contest the
sufficiency of the tests performed or the data collected.
Accordingly, the Court concludes that it is appropriate to
present findings of fact in the manner suggested by the
defendant.

The following findings of fact are supplemental
to those previously set forth in the opinion of the
Court.

FINDINGS OF FACT

1. The Court has jurisdiction over the parties and
subject matter.

2. The streams and rivers in question in this
litigation are either navigable rivers or source-tributaries
to a navigable stream.

3. There is no existing order to Durham or Chapel
Hill to modify their waste-treatment facilities.

4. The U. S. Army Corps of. Engineers, through its
District Engineer, filed on September 15, 1976, its Notice
of Decision to go forward with impoundment of the B.
Everett Jordan Lake.

14.

5. This Notice of Decision summarized the District
Engineer's reasons and analysis in his decision to go for-
ward with the impoundment.

6. The U. S. Army Corps of Engineers, through its
District Engineer, Colonel Homer Johnstone, carried out a
full and proper decisionmaking process which involved a
multitude of disciplines both within the Corps and
through outside consultants.

7. The District Engineer consulted with experts in
a wide range of disciplines before reaching his decision.

8. The U. S. Army Corps of Engineers, through its
District Engineer, Colonel Homer Johnstone, carried out
its procedural responsibilities both under NEPA and under
the Consent Judgment of February, 1974,

9. The Corps of Engineers prepared and circulated
a technical work plan (inviting comments from the plaintiffs)
and the plaintiffs have no quarrel with the manner in which
the Corps conducted additional studies.

10. The prediction of the trophic state of a pro-
posed impoundment is a nascent science calling for a great
deal of judgment. Various mathematical models are used
but these are imperfect. The models used are the best
available from the EPA National Eutrophication Survey.
Care must be taken in interpreting the output for various
parts of the country. Allowances must be made for various
climatic, geological, and topographic factors; also
water residence time and turbidity.

11. Before making any predictions as to water quality
or environmental effect, the Corps of Engineers first set
out under the terms of the Consent Judgment of February 5,
1974, to collect further data in both the Haw and New Hope

15.

River basins. This data was in addition to That which had
been collected by the Corps and its water quality contractors
from 1966 through 1974.

12. In conducting their studies as to water qualify,
the Corps of Engineers tested a wide range of parameters
including:

Temperature Nitrogen Mercury
Residue Phosphorus Chromium
Turbidity Chlorophyll Cadmium
Conductivity Coliforms Enterocci
pH Chloride Iron
Dissolved oxygen Manganese Copper
Biochemical oxygen demand Zinc Lead

13. The Corps of Engineers has carried out suffi-
cient studies as to water quality both in-house and through
independent contractors and these studies and data collection
have been done by standard, scientifically accepted methods.

14. Contemporaneous with the above data collection,
the Corps of Engineers prepared and tested a physical model
of the proposed impoundment at their Waterways Experiment
Station in Vicksburg, Mississippi. Members of the Wilming-
ton District staff observed the testing at Vicksburg and,
later, conducted further tests at Wilmington.

15. The Corps of Engineers maintains regular
sampling and testing of a wide range of water quality
parameters at its reservoirs.

16. The operation of the physical model, when
analyzed with data from the operation by the Corps of
John H. Kerr (Buggs Island) Lake, shows that Jordan will
be divided into four physical segments and that this seg-
mentation of the Jordan Lake will affect water. quality.

16.

17. Studies conducted by Dr. Weiss show that
segmentation of lakes by barriers, such as causeway
bridges, limits water exchange between the segments and thus
increases retention of phosphorus.

18. One of the most important factors in predict-
ing trophic state in the Piedmont Southeast is the pre-
sence of iron and aluminum rich clays because the iron and
aluminum molecules bind with the phosphorus and thus "trap"
the phosphorus out of the lake. This gives lakes in the
Piedmont Southeast a high coefficient of phosphorus
retention and makes lakes less eutrophic despite high
nutrient loadings.

19. The Kirchner-Dillon values for phosphorus
retention, which were used by Hydrocomp and the Corps in
predicting the degree of eutrophication-in the Vollenweider
and Larsen-Merceir models overstate eutrophication because
the value system was developed for use on Canadian lakes
and the values must be subjectively adjusted to account
for differences in soils, climate, and topography.

20. The usefulness of a particular trophic state
of a lake is itself subjective and somewhat a matter of
personal taste or desires. For instance, very clear (nut--
rient poor) water may be more aesthetically pleasing than
eutrophic (nutrient rich) water but would not support a
good fishery. The converse would be true of a heavily
eutrophic lake.

21. In assessing the predicted trophic state of the
proposed impoundment as a factor in his decision making, the
District Engineer relied not only upon the in-house
scientists of the Corps of Engineers but also upon two
outside experts, Dr. Patrick Brezonik of the University
of Florida and Dr. Charles Weiss of the University of

17.

North Carolina at Chapel Hill.

22. Both Dr. Weiss, an expert in the fields of
limnology and bacteriology, and Dr. Brezonik, an expert in
limnology and water chemistry, testified that they were in
substantial agreement with the water quality conclusions
reached by the District Engineer.

23. The consensus conclusion of the Government
experts, Brezonik, Weiss, and Jackson, was that the probable
water quality of the impoundment was such that the project
purposes would be fully carried out. They predicted that
Segments I, II, and III would be available for swimming,
boating, fishing, and water supply and that Segment IV
could be used for boating and fishing. This analysis
formed the basis for the water quality conclusions stated
by the District Engineer in his Notice of Decision.

24. The plaintiffs' pleadings raised questions as
to the potential presence in the water of kepone, mirex,
and polychlorinated biphenyls (PCB's), but they presented
no evidence on these allegations; and the Government wit--
ness, Correale, stated definitely that testing for kepone,
mirex, and "PCB's" had been conducted and that no amounts
of any consequence were found.

25. When testing done by the Corps of Engineers
indicated that some fish in the streams contained mercury
above the FDA proposed guideline, the District Engineer con-
tacted the State of North Carolina to ascertain the position
of the State and readings on other river basins.

26. There is considerable controversy as to the
proposed FDA guideline on mercury and the State of North
Carolina takes a position that the guideline is too strin-
gent as there appears to be a high background level of
mercury in North Carolina.

18.

27. The testing for mercury in fish flesh did on
a number of occasions exceed the proposed guideline of
the Food and Drug Administration, but according to the only
toxicologist to testify, there is no threat to human health
from the presence of the mercury in the fish at those
amounts orfrequencies.

28. There is no presently ascertainable threat to
human health from the presence of heavy metals in the
waters in the frequencies and amounts which were recorded.

29. Mercury occurs in many compounds in the environ-
ment, stemming both from manmade sources and natural
sources. For purposes of assessing the environmental impact
of the impoundment, the Corps:of Engineers assumed that all
of the mercury found was in the more dangerous methyl mer-
cury form. This is a very conservative toxicological
position.

30. There would be no presently ascertainable
bacteriological threat to human health by impoundment of
the reservoir.

31. The Corps of Engineers carries out regular
mosquito abatement programs at all of its reservoirs and
will institute one at Jordan if impoundment takes place.

32. Impoundment and storage would be necessary to
provide downstream communities with low flow augmentation
for a steady river flow. Such a steady river flow will
benefit downstream communities and will assure them of a
steady water supply both in terms of quality and quantity.

33. There is a critical need for more water supply
storage in Piedmont North Carolina, and the B. Evdrett
Jordan project would provide such a supply for the
"Triangle Area."

19.

34. Taste and odor problems which might result
from use of the lake for raw water supply would be no
different from that experienced by many water treatment
plants in North Carolina and would fall within the range
which can be treated economically by conventional means.

35. Although a so-called "dry reservoir" could be
used for hunting, fishing, hiking, and camping, the daily
usage for recreational purposes would be miniscule compared
to that of the reservoir impoundment as planned.

36. The U. S. Army Corps of Engineers, through its
District Engineer, Colonel Homer Johnstone, circulated its
Draft Supplement to the EIS to theplaintiffs and the
plaintiffs, CCNC and ECOS, responded and these comments
were printed in the final supplement. In some instances,
the Corps made modifications in their studies, calculations
and/or plans in response to these comments.

37. The District Engineer considered the available
alternatives to impoundment prior to his decision includ-
ing the two predominant alternatives, "dry reservoir," and
"delay."

38. There are adverse environmental consequences.
from continuing the project in its current unimpounded
status, especially in sedimentation and the decline of
some vegetation.

39. Although the plaintiffs' experts have differ-
ing conclusions from the defendants' experts, it appears
that the reservoir, if impounded, would have a quality
sufficient to allow its use for the Congressionally
authorized purposes.

40. There is common agreement that B. Everett
Jordan will be eutrophic, but over 70 per cent of the

20.

lakes in North Carolina are eutrophic, including the
highly popular John H. Kerr (Suggs Island) Reservoir,
Hickory Lake, high Rock Lake, Lake James, and Lake Norman.

41. It is common, safe, and practical in North
Carolina for a municipal water system to take its supply
of water out of a river or body of water into which other
municipalities have induced waste sewage. Raleigh, Rocky
Mount, Salisbury, and Albemarle, for example, are cities
supplied by water into which waste has been discharged.

42. The District Engineer consulted many different
experts before reaching his Decision to Impound, including
limnologists, bacteriologists, chemists, environmental
engineers, botanists, foresters, toxicologists and others.

43. Segment IV of the proposed Jordan Lake can be
compared for water quality purposes to that section of
Nutbush Creek Arm of Kerr Lake (Suggs Island) above the
State Road 1308 bridge and causeway. This is a very useful
arm of Kerr Lake despite the presence of effluent from the
waste water treatment plant of the City of Henderson.

44. The judgment of the Corps of Engineers as to
the projected water quality of the B. Everett Jordan Lake
has been based upon recent field data gathered expressly
for the supplemental studies, water sampling data which
has been collected on a regular basis since 1966, mathe-
matical and physical models, previous studies and pro-
jections, and the judgment of outstanding professionals in
water resources study disciplines.

21.

VI. CLAIMS OF DURHAM AND CHAPEL HILL

Durham and Chapel Hill have presented similar
claims in this litigation for determination by the Court.
In general, Durham and Chapel Hill contend that they are
entitled to compensation from the United States for any
increase in the cost of sewage treatment due to the im-
poundment of the B. Everett Jordan Dam. In addition to the
claim for compensation, Durham and Chapel Hill contend that
the Corps failed to satisfy the requirements of NEPA
by failing to take into consideration the cost of improv-
ing the sewage treatment facilities to the upstream com-
munities as a result of the Jordan Lake.

A. Claim for compensation

Durham and Chapel Hill presently make use of a sewer
system that is an operation conceived to take advantage of
the use of the flow of a tributary of a navigable stream.
The system, although providing some degree of treatment to
this discharge, relies on the flow of the discharge streams
to complete the task of sewage treatment. Plaintiff-Inter-
venors strenuously contend that the impoundment of the
Jordan Dam will result in more stringent pollution control
limits being imposed on them. This increased cost, as their
argument goes, will result from the alleged fact that the
reservoir will reduce the flow of the sewage-receiving
streams, thus reducing the streams capacity to assimulate
phosphorus and other detrimental materials in their plant
effluent.

Accordingly, this case does not involve a taking of
fast land or vested easements, rather, the issue involved
is whether the cities have a property right in the continued

22.

and unaltered flow of a tributary to a navigable stream
If this issue is answered in the affirmative, the Fifth
Amendment would obviously require the payment of just com-
pensation. If answered in the negative, no compensation
will be required.

For purposes of this discussion, it will be assumed
that the cities will indeed be required to expend additional,
money on their treatment facilities as a consequence of
the impoundment of the Jordan Dam. However, the Court
expressly finds that Durham and Chapel Hill have failed to
establish that such expenditures will be necessary, or if
necessary at some future date, are a consequence of the
proposed impoundment. Accordingly, with respect to the
issue of compensation, the Court will address the defen-
dant's motion to dismiss for failure to state a claim for
relief. For the reasons which follow, as to the issue of
compensation, the motion is allowed.

The B. Everett Jordan Dam is constructed at the con-
fluence of the Haw and New Hope Rivers. The Haw and New
Hope are tributaries of the navigable waterway of the Cape
Fear River. The proposed dam project is a part of a
multi-purpose project including flood control for the Cape
Fear River Basin.

The parties do not appear to contest the proposition
that the tributaries in question are indeed tributaries to
a navigable stream. However, the plaintiff-intervenors do
allege that the impounding of the rivers will cause them to
cease to be part of a navigable river. The Court concludes
that this argument is without merit. Congress has the
power under the Commerce Clause to erect dams for flood

23.

control in order to protect the navigable streams of com-
merce. United States v. Grand River Dam Auth. , 363 U.S.
229, 232, 80 S.Ct. 1134, 4 L.Ed.2d 1186 (1960); Oklahoma
v. Atkinson Co., 313 U.S. 508, 525, 61 S.Ct. 1050, 85 L.Ed.
1487 (19 41) ; United States v. Appalachian Power Co., 311 U.S.
377, 61 S.Ct. 291, 85 L.Ed. 243 (1940) . Accordingly, the
issue for determination is whether the plaintiff-intervenors
have a legally protected property right in the continued
flow of these tributaries which is superior to the govern-
ment's navigable servitude on these streams.

The government, by the creation of the Jordan Lake,
has not diminished the value or use of the plaintiff-
intervenors' land. All that may result from the impoundment
is an alteration of the flowcapacity of the streams--a
necessary result from any impoundment. Accordingly, what
the plaintiff-intervenors' claim is a right in the continued
flow of a stream.

The Court concludes that the flow of a stream is in
no sense a private property right, and that there is no
room for a judicial review of that question., United States
v. Chandler-Dunbar. Co:, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed.
1063 (1913) . There is no private property right in the flow
of a stream which is subject to the United States navigational
servitude. United States v. Appalachian Power Co., supra
at 427. This rule of law has existed for too long a period
of time to be disturbed by this Court.

In United States v. Willow River Power Co., 324
U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945), a government
dam project resulted in an elevation of the level of the
water thus reducing Willow's power generating capacity.
The Supreme Court held that this damage to the power com--
pany did not constitute such a taking of property as is

24.

required by the Fifth Amendment to be compensated.

Willow, supra at 510. The Court stated the matter very
succinctly when it observed:

"Rights, property or otherwise, which are
absolute against all the world are cer-
tainly rare, and water rights are not among
them. Whatever rights may be as between
equals such as riparian owners, they are
not the measure of riparian rights on a
navigable stream relative to the function
of the Government in improving navigation.
Where these interests conflict they are not
to be reconciled as between equals, hut the
private interest must give way to a superior
right, or perhaps it would be more accurate
to say that as against the Government such
private interest is not a right at all."
Willow, supra at 510.

The power of Congress, when approptiately exercised,
is not to be questioned by the courts. As stated in Grand
River,

"[W]hen the United States appropriates the
flow either of a navigable or nonnavigable
stream pursuant to its superior power under
the Commerce Clause it is exercising estab-
lished prerogatives and is beholden to no one."
Grand River, supra at 233.

In United States v. Rands, 389 U.S. 121, 88 S.Ct. 265,
19 L.Ed.2d 329 (1967), the Supreme Court held that the value
of land as a portsite was not a proper element of compensa-
tion. In Rands, the Court observed that the power to regulate
navigation conferred upon the United States a dominant servi-
tude which extended to the entire stream. The.proper
exercise of the power is not an invasion of any private
property right in the stream, for the damage sustained does
not result from the taking of property from the riparian
owners within the meaning of the Fifth Amendment but from
the lawful exercise of a power to which the interest of
riparian owners have always been subject. Rands, supra at
123. Accordingly, a riparian owner is not entitled to

25.

compensation for diminished value which is attributable to
the flow of the stream. United States v. Virginia Electric
Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961).

The Fourth Circuit has previously addressed the issue
of whether a riparian owner has a right to compensation
for loss of waste-disposal use of nonnavigable source-
tributary of navigable rivers. The court, in characterizing
the petitioners complaint stated, "[p]lainly this is not a
problem of flow, but rather of what ingredients can be
put in the water. Stevens' difficulty is the prohibition
against pouring a deleterious additive into the creek or
river. We see no merit in this plaint." United States v.
531.13 Acres of Land, ,366 F.2d 915, 919 (4th Cir. 1966).

In 513.13 Acres, an industrial polluter was faced
with a problem even more serious than plaintiff-intervenors'
alleged difficulty. In that case, a dam was built and the
state ordered the polluter to clean up its discharge.
Prior to the impoundment, Stevens was free to dump its refuse
at will. After impoundment, in an effort to improve the
quality of the water for contact uses, Stevens was ordered
to clean up its discharge. The Court stated, that even if
the Government had ordered Stevens to cease its dumping
activities rather than the state, that Stevens position
would still be untenable because the Government in so doing
would have taken nothing which belonged to Stevens. Addi-
tionally, the dam had not only limited the use of Stevens'
discharge process, it had destroyed it and still no taking
was found by the Court. Accordingly, the Court held that
the cost of a satisfactory alternate method of treatment
must be borne by Stevens, and could not be shifted to the
United States.

26.

In Borough of Ford City v. United States,. 345 F.2d
645 (3rd Cir. 1965), the court passed on the issue of
whether a municipality has a claim for compensation due to
alleged damage to its sewer system claimed to have been due
to the construction of a lock and dam by the Department of
the Army. In that case the dam resulted in an elevation
of the water level causing serious damage to the sewer-
outlet systems. The court held that the government was not
liable for damage to the system caused by the construction
of a lock and dam on the river.

What is presented to the Court in this issue is
fairly and plainly a sewer system that is a riparian location
unit. Its operation and function is conceived to take
advantage of the use of the flow of a source-tributary of a
navigable stream. Inasmuch as the plaintiff-intervenors
have failed to establish private property right in the
unaltered flow of the streams in question over and above
that of the United States, it is concluded that the plaintiff-
intervenors claim for compensation for this alleged damage
is hereby dismissed.

B. Claim of NEPA Violation

The Court's disposition of Durham and Chapel Hill's
claim for compensation does not resolve the critical
question of whether the defendant has failed to satisfy the
requirements of NEPA for failing to take into account all
the economic burdens that may be imposed upon the surround-
ing area as a necessary consequence of the impoundment of
the Jordan Dam. In particular, Durham and Chapel Hill
claim that the impoundment of the Jordan Dam will convert

27.

the present free-flowing character of the receiving streams
into which treated effluent is discharged from a portion
of the Durham waste-water treatment plant into a motion-
less, shallow body of water requiring the City to incur
substantial additional expense for the treatment of the
waste-water to remove phosphorus and nitrogen. Durham con-
tends that this cost will result solely from the creation
of the lake and, as such, should have been considered by
the Corps of Engineers in the cost/benefit ratio. Durham-
asserts that the Corps should be required to include and
describe this financial burden as a, part of the cost of the
project, and further, that such omission renders the deci-
sion to impound unreasonable and arbitrary.

Chapel Hill contends that it is willing to bear the
cost of treatment to meet environmental standards, however,
Chapel Hill asserts that the EIS indicates that this would
have little effect on the water quality in the lake. Accord-
ingly, Chapel Hill contends that the lake will present a
public nuisance and'health hazzard to the citizens of its
community and that the cost of additional treatment should
be charged as a cost of the project.

The Army Corps of Engineers contend that the cost/
benefit ratios and financial burdens asserted by the
plaintiff-intervenors are irrelevant inasmuch as their
decision to impound was based upon the existing condition
of the water and not upon an assumption that additional
treatment would be required. Furtheimore, the defendant
contends that any additional treatment the plaintiff-
intervenors may have to implement will result from the
mandates of the Federal Water. pollution Control Act of 1972,
33 D.S.C. § 1251, et seq., and not as a result of the

28.

proposed impoundment. Additionally, the defendant asserts
that there is no existing order to Durham and Chapel Hill
requiring additional water treatment, and further, that
there is no way to evaluate what may or may not be required
of them in the future. Accordingly, the defendant con-
tends that it was not required to take into consideration
a fact which is based upon mere speculation, and further,
that in any event, the plaintiff-intervenors have no right
to pollute a stream or to expect that any such existing
right will continue into the future.

For purposes of this discussion; all questions
relating to the water quality in the proposed impoundment
will be deferred for evaluation in Part VII of the Court's
opinion. Presently, the Court will make a determination of
whether the defendant was required to take into consideration
the alleged additional cost to Durham and Chapel Hill for
improved waste treatment in its ultimate decision. to
impound, and, whether such data should have been included
in the Environmental Impact Statement.For the reasons
which follow, the Court concludes that the Corps was not in
error for refusing to consider this purely speculative
impact of impoundment on the upstream communities of Durham
and Chapel Hill.

The purpose of our national environmental policy is
set forth in Title 42, section 4321 which states, in part,
that it is a national policy to ". . . encourage productive
and enjoyable harmony between man and his environment; to
promote efforts which will prevent or eliminate damage to
the environment and biosphere and stimulate the health and
welfare of man. . . ." This general and laudatory policy
is supplemented by six specific goals that place a

29.

continuing responsibility on the federal government to use
all practicable means, consistent with other essential
considerations to improve and coordinate federal plans,
functions, programs, and resources to the end that the
Nation may: (1) fulfill the responsibility of each genera-
tion as trustee of the environment for succeeding genera-
tions, (2) assure for all Americans safe, healthful, pro-
ductive, and aesthetically and culturally pleasing sur-
roundings, (3) attain the widest range of beneficial uses
of the environment without degradation, risk to health or
safety, or other undesirable and unintended consequences,
(4) preserve important historic, cultural, and natural
aspects of our national heritage, and maintain, wherever
possible, an environment which supports diversity and
variety of individual choice, (5) achieve abalance between
population and resource use which will permit high standards
of living and a wide sharing of life's amenities, and (6)
enhance the quality of renewable resources and approach
the maximum attainable recycling of depletable resources.
42 U.S.C. § 4331(b).

It is in this spirit of environmental consciousness
that Congress saw fit to require federal agencies, which
contemplated construction of man-made structures upon our
environment, to prepare and distribute a comprehensive
study of the proposed project's effect on the overall
quality of man's environment. To this end, 42 U.S.C.
§ 4332 set forth the framework for the compilation of the
necessary data to allow an informed decision to be made on
all projects effecting our environment. The framework
thus establishdd, has given rise to the Environmental
Impact Statement (EIS).

30.

The purpose of a full disclosure statement is to
allow the federal agency to demonstrate objectivity in
the treatment and consideration of the environmental con-
sequences of a particular project. Accordingly, the EIS
must be sufficiently detailed to allow a responsible execu--
tive to arrive at a reasonably accurate decision regarding
the environmental benefits and detriments to be expected
from the prograrn's implementation. Put another way, the
EIS must provide a record upon which a decisionmaker could
arrive at an informed decision. Sierra Club v. Froehlke,
486 F.2d946, 950. (7th Cir. 1973).

NEPA requires a full disclosure of all the factors
which are relevant to the ultimate decision of whether or
not to go forward with the project. Factors other than
environmental considerations are required by the Act to be
included in the decision making process. Title 42, § 4332(t3)
expressly provides that presently unquantified environ-
mental amenities and values are to be given consideration
along with economic and technical considerations.

Clearly, the plaintiff-intervenors have standing to
maintain their claims in the present action. They have
alleged facts which fulfill the two-part test of injury in
fact and being arguably within the zone of interest to be
protected by the statute. Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct.
827, 25 L.Ed.2d 184 (1.970). Moreover, the facts as alleged
indicate that the plaintiff-intervenors stand to be among
those likely to be injured. Sierra Club v. Morton, 405 U.S.
727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), In City of
Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975), the court
examined the question of a party's standing in environmental

31.

cases. In Davis, a California city brought an action
against the Secretary of Transportation and others for
an injunction against the construction of a proposed free-
way interchange. The trial court dismissed the plaintiff
for lack of standing. The Court of Appeals reversed find-
ing that a city that had alleged that the proposed inter-
change might adversely affect the quality and quantity of
the city's water supply had met the "injury in fact" test
for standing under NEPA. Davis, supra at 671.

In the present case, Durham and Chapel Hill have
alleged that they will be forced to incur an expense
solely from the impoundment of the Jordan Dam. Accord-
ingly, they have met the injury in fact test as set forth
in the Data Processing decision. Moreover, they clearly
fall within the group of those being arguably within the
zone of protection set forth in NEPA.

Having established that Durham and Chapel Hill have
standing to maintain this action does not answer the
issues presented in their claim. For a claim may be
totally without merit yet still be sufficient to estab-
lish standing. Therefore, it is now necessary to determine
whether the Corps has violated some provision of NEPA
which has caused the claimed injury to Durham and Chapel.
Hill.

Although there appears to he little authority on the
topic, it appears that the Corps is required to take into
consideration, under the NEPA standard of determining
cost, any money which a municipality will be required to
expend solely as a consequence of the proposed impoundment.
Cape Henry Bird Club v. Lai.rd, 359 F.Supp. 404, 416 (1973),
aff'd, 484 F.2d 453 (4th Cir. 1973). It would seem to
follow from the conclusion that such expenditures must be

32.

included as a cost of the project, that such cost to the
cities must also be taken into consideration in the Army's
decision to impound. If such costs are determined to exist,
then this fact should be set out in the EIS and considered
by the agency in arriving at its decision.

If Durham and Chapel Hill are required to expend
the substantial sums of money they contend will be neces-
sary due to the impoundment then clearly this factor would
be relevant to the Army's decision. .However, if the
expenditures of this money results from factors other than
the project, then it would not be a cost which NEPA re-
q uires the Army to consider in making its decision. Accord-
ingly, the Court is presented with a factual question of
whether Durham and Chapel Hill will be required to upgrade
their treatment plants solely as a consequence of the
impoundment of the Jordan Dam.

On this issue, the burden of proof is upon Durham
and Chapel Hill to establish by a preponderance of the
evidence that they will have to incur these expenses solely
as a result of the impoundment of the dam. Put another
way, since the plaintiff -intervenors are attacking the
sufficiency of the EIS and the conclusions reached there-
f rom, the burden is upon them to establish that the EIS
was inadequate and that the decision to proceed was arbi-
trary and capricious. Sierra Club v. Froehlke, 534 F.2d
1289 (8th Cir. 1976). The plaintiffs' burden is not met
by merely establishing a prima facie showing of deficiencies.
S ierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975).
Moreover, something more than hindsight and sophisticated

33.

editing is required to make out a case. Sierra Club v.
Morton, supra.

In the present case, Durham and Chapel Hill have
presented evidence bearing on the cost of improving their
facilities to eliminate certain materials from their waste
discharge. However, the issue at this stage is not how
much it will cost, but rather, whether there will be a cost
incurred, and whether that cost is directly related to
the impoundment of the Jordan Dam.

Initially, the Court observes that the Corps' decision
to proceed with the impoundment was based upon the existing
quality of the water in the source streams and not upon
the quality of the water after any new treatment facilities
are provided. Moreover, at present there is no pending
order for Durham and Chapel Hill to alter their present
form of waste-treatment. Mindful of these facts, the
Court must not overlook the rule that the sufficiency of
an EIS must be determined without reference to possible
future actions. Sierra Club v. Morton, supra at 824.
Today's statement is based upon existing conditions and
the assumption that these conditions will continue into the
future.

The plaintiffs' fear of increased cost is based in
part, if not in its entirety, on a statement which appears
in House Document 508, in which a statement appears indi-
eating that a higher degree of treatment of waste may be-
come necessary due to the proposed uses for the Jordan Lake.
From this general statement, the plaintiffs have sought to
establish that phosphorus, which is presently discharged
into source streams, will be reclassified as a pollutant
in the reservoir. Following this conclusion, they point
to the requirements of the Federal Water Pollution Control
Act of 1972 which requires a complete clean up of the

34.

nation's waterways by 1985. Accordingly, their position
consist of the following argument: (1) that phosphorus
is not a pollutant in the streams, .(2) that it is a pol-
lutant in an impoundment, (3) that the Water Act requires
removal of all pollutants by 1985, and (4) that from
these "facts" it is obvious that they will have to incur
an expense solely because of the impoundment of the Jor-
dan Dam.

The Court concludes that Durham and Chapel Hill-
have failed to prove the case which they have presented
to the Court. First, the evidence is conflicting on
whether phosphorus is a pollutant in a reservoir and not
in a stream; second, the Water Act does not require the
removal of all materials present in waste effluent; and
finally, there is no evidence which clearly indicates
that phosphorus removal will be required now or in the
future. Without doubt, Durham and Chapel Hill could, at
any time in the future, be required to alter some portion
of their waste-treatment facilities to stay in line with
new water quality standards, however, when that will
occur, why it will occur, or what will have to be done is
left to pure speculation.

The Corps is not required to consider, in detail,
every conceivable variation and alternative presented to
them, nor are they required to consider an effect which
cannot be reasonably ascertained, and whose implementation
is remote or speculative. Coalition for Responsible
Regional Development, supra. For the Court to declare
that the EIS is insufficient upon the basis of speculation
and conjecture would represent a violation of reason and
amount to little more than a "crutch for chronic fault-
finding." If the Court were to follow the course pre-
sented by the plaintiff-intervenors, this litigation might

35.

never come to an end and valuable federal projects which
have been authorized by the Congress would never be able
to become a reality.

The plaintiff-intervenors simply have not carried
their burden of proof. They have raised questions which
are of substantial concern to them, but due to the insuffi-
ciency of data and proof do not invalidate the decision
of the Corps or the sufficiency of the EIS.
Accordingly, the Court concludes that the plaintiff--
intervenors' claim, as it relates to the sufficiency of
the EIS, is without merit and must be dismissed.

VII. WATER QUALITY

All of the party plaintiffs remaining in this action
contest the Corps' decision to impound upon the basis that
the quality of the water in the proposed impoundment will
be unsuitable for any of its intended uses. It is now the
duty of the Court to evaluate the merits of the Corps'
decision to impound in light of these objections. The
Court's review of the Corps' decision to impound the B.
Everett Jordan Dam is narrowly limited to a determination
of whether the Corps' actual decision was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law. Overton Park, supra.

With few exceptions, which have been discussed above
or to be covered later, the plaintiffs do not contest the
sufficiency of the actual test that were performed or the
accuracy of the data collected therefrom. The plaintiffs'
primary objection to the Corps' action rests in the con-
clusions that the Corps has reached from the available
information. In general, the Corps' conclusions were set
forth in its twenty-five page Notice of Decision to Impound.
In that document, Colonel Johnstone set forth his reasons

36.

why impoundment would further the public interest. His
conclusions were reached after a thorough review of all
the available data and after consultations with noted
experts in the field of water quality. From this review,
he concluded that the lake would provide an adequate
source of water supply, fish and wildlife conservation,
contact recreation, flood control and low flow augmentation.
The plaintiffs' objections are directed at these conclu-
sions. In general, the plaintiffs contend that the water
quality will be so poor that the lake will not be suitable
for water supply, fish or wildlife conservation and con-
tact sports. Additionally, the plaintiffs assert that
flood control can be accomplished by maintaining the
project as a "dry dam" and that low flow augmentation is
unnecessary.

The plaintiffs contend that the decision to impound
was arbitrary and capricious inasmuch as the Corps'
decision was not based on relevant factors and ignored
relevant environmental consequences. Furthermore, the
plaintiffs contend that the Corps has made the erroneous
assumption that if the reservoir is to be impounded at
all, that it must be impounded now. More specifically,
the plaintiffs claim that the irrelevant factors con-
sidered by the Army included (a) wildlife subimpoundrnents,
(b) low flow augmentation, (c) drinking water supply, and
(d) fishing. Furthermore, the plaintiffs claim that cer-
tain relevant factors were ignored; to wit, (a) increased
urbanization, (b) recreational resources on the Nuese
River, and (c) the benefits of deferring impoundment.
Throughout the plaintiffs' objections, they point to the
insufficiency of the evidence to support the Corps' decision
to impound, and further, that the entire decision making

37.

process failed to give good faith consideration to environ-
mental factors. Additionally, the plaintiffs assert that
the Corps failed to mitigate avoidable adverse environmental
effects. It is within the confines of this broadside
attack on the Corps' decision to impound that the Court
will address the remainder of this opinion.

Since the parties have stipulated that the Corps
has satisfied the procedural requirements set forth in
NEPA, the Court's review of this matter will be limited
to a determination of whether the Corps' decision.and
conclusions represented a "clear error in judgment."
Overton Park, supra.

In reviewing the Corps' decision to proceed with the
impoundment of the Jordan Dam, it is important to keep in
mind that a reasoned decision can only be made upon the
basis of information which is reasonably available. An
agency processing an EIS and making the judgments required
to be made by NEPA is not required to accumulate the sum
total of scientific knowledge of the environmental elements
affected by a proposal. EDF, Inc. v. Corps of Engineers,
348 F.Supp. 916, 927 (N.D.Miss. 1972) , aff'd, 492 F.2d 1123
(5th Cir. 1974); Movement Against Destruction v. Trainor,
.400 F.Supp. 533, 552 (D.Md. 1975). Moreover, it is not
necessary that all experts in the field need agree with
the conclusions contained within the EIS or with the
agency's decision nor does the law require that a court
find the EIS is scientific perfection. Life of the Land
v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973); Movement,
supra. Indeed, disagreement among the experts will not
serve to invalidate the EIS or the decision to impound,
for the purpose of NEPA is to bring all relevant factors
and opinions to the front for full consideration by the

38.

agency. In this light, further studies, evaluation and
analyses by experts are almost certain to reveal inade-
quacies or deficiencies. Environmental Defense Fund v.
Corps of Engineers, 342 F.Supp. 121.1, 1217 (E.D.Ark. 1972),
aff'd, 470 F.2d 289 (3th Cir. 1972). The purpose of the
EIS is to inform the decisionmakers of the environmental
ramifications of the proposed action. The statement need
not achieve scientific unanimity on the desirability of
proceeding with the proposed action. Life of the Land,
supra at 473.

So it is in the present case, the plaintiffs' evi-
dence conflicts with that of the defendant's experts in
the conclusions which can be drawn from the material set
forth in the EIS. Furthermore, the plaintiffs contend that
by stalling the decision to impound it will enable addi-
tional studies to he made concerning water quality. The
problem with this approach is that such will be the case
in all projects authorized by Congress and an adoption of
this position would result in an endless cycle of study
and conflict among the experts. All that is required by
NEPA is that the decisionmaker formulate an informed
decision based upon available data. His conclusions must
be reasonable and must not be set aside except upon a find-
ing of a clear error in judgment. The Court concludes
that there is no such clear error in the judgment in the
present controversy. An examination of the plaintiffs'
objections reveals the correctness of this resolution.

Water Quality

(a) Drinking Water Supply: The plaintiffs con-
tend that the consideration of the lake as providing a
source of drinking water indicates how the Army utilized
irrelevant factors in its conclusion to impound. They
assert that the evidence clearly indicates that the quality

39.

of the water will be too poor for drinking purposes, and
further, that there is a lack of need in the area for a
water supply from the Jordan Project. The plaintiffs
point to the highly trophic condition of the lake and
concentrations of heavy metals in the proposed reservoir
to support this conclusion. However, the weight of the
expert testimony and lack of specific guidelines for
testing the water quality indicate that the majority of
the lake will be suitable for raw water supply. The
fact that the water may require certain treatment does
not eliminate this factor from consideration because most
of the water used for drinking in this area must be
treated prior to consumption. As for the mercury content,
there is substantial controversy on the appropriate guide-
lines to be applied. The Corps assumed that all the
detectable mercury was of the toxic variety and still the
experts agreed that this would pose no threat to human
health. Additionally, it appears that the mercury content
in this lake will be no different from that in many other
North Carolina lakes presently being used for many purposes.

The plaintiffs claim that there is no present need
for the water in the Jordan project as a drinking supply.
This assertion clearly overlooks the critical need for
more water in the Piedmont of North Carolina. The evidence
would tend to show that the entire capacity of the pro-
posed lake has already been requested, by local communities
for use as a raw water supply.

Basically, the plaintiffs contest the validity of
the conclusions the defendant has made on the availability
of the Jordan Lake as a raw water supply. However, the
evidence, both empirical and expert, point to a differing

40.

conclusion. Clearly, the Corps' decision in this respect
was not clearly erroneous. They took a hard look at all
pertinent data and scientific opinion and arrived at a
reasonable conclusion upon which some other reasonable
men have differed. However, difference of opinion will not
invalidate the Corps' decision. Life of the Land, supra.
Accordingly, an examination of the exhibits and the testi-
mony indicates that there was a sufficient rational basis
for the District Engineer's conclusion that the water
quality and need for a raw water supply justified the
impoundment of the dam.

(b) Fish and Wildlife: The plaintiffs contend
that another irrelevant fact which was considered by the
Army in its decision to impound was the lake's use as a
fish habitat and fishing area. This conclusion was drawn
from the allegation that the lake would either (1) not
support a substantial fish population, or (2) that the fish
would not be suitable for human consumption. In support
of this position the plaintiffs point specifically to the
coliform counts and presence of mercury in the lake. The
parties do not disagree on the data establishing the level
of these factors in the fish population, rather, they
differ on the effect of these matters on fish populations.

As with the plaintiffs' argument on the availability
of the proposed lake as a raw water source, the weight of
expert testimony is contrary to the plaintiffs' position.
The testimony establishes that there is no substantial
bacteriological threat to health from the coliform content
the lake. On the contrary, it would appear that the
eutrophic condition of. the lake will support a good

41.

fishery. The fact that there will probably be an abundant
fish population, when considered with the fact that there
is no present danger from the consumption of these fish,
all serve to support the conclusion reached by the Army.

In addition to the fact that the lake will most
probably support a useful fish habitat, the Army considered
the measures to be taken should health hazards develop.
These measures could include the posting of the lake dur-
ing periods of possible danger. Also, the Court observes
that any problem caused by mercury levels in the fish would
be present whether impoundment were achieved or not.
Furthermore, even the State of North Carolina does not
object to the presently detected level of mercury in the
sample fish and the experts support this in their conclu-
sion that mercury does not present any health problem in
the proposed lake.

By way of summary, the use of the reservoir for
fishing purposes is not an irrelevant factor. The
experts indicate that the lake will support a beneficial
fish population. Accordingly, the Court concludes that.
the Corps' decision to consider the fishing aspects of the
proposed impoundment was a reasonable choice based upon
a consideration of the relevant facts.

(c) Water Recreation. The plaintiffs assert that
the proposed impoundment will not result in the production
of a lake capable of supporting water contact recreation.
In support of this contention the plaintiffs point to the
bacteria levels present in the proposed lake. The plain-
tiffs conclude that the bacterial limits exceed safe
limits for contact sports. Accordingly, the plaintiffs
state that swimming is not a factor the Army could con-
sider in arriving at its decision to impound.

42.

Again, as with other objections raised in opposi-
tion to the proposed impoundment, the plaintiffs' position
is simply not supported by the greater weight of the
evidence. The consensus conclusion of the qualified
experts to testify at the trial indicates that much of
the lake, if not all, would be safely available for swim-
ming, boating, and other contact recreation. Moreover,
one expert testified that there would be no bacteriologi-
cal threat to health by the impoundment of the reservoir.
Although the plaintiffs have made a vigilant effort
to point out their areas of disagreement with this con-
clusion, the expert testifying for the government, after
reviewing the same data, considered by the Army, has -
made a contrary conclusion.

Accordingly, the Court concludes that the quality
of the water predicted to be contained in the proposed
impoundment should support a wide variety of recreational
and conversation uses.

Flood Control and Low Flow Augmentation

Initially, the plaintiffs contend that flood control
can be accomplished by maintaining the project as a "dry
dam" as well as it can be satisfied by impoundment.
'boublessly, this is a correct statement. However, the
periodic flooding of the area, a necessary consequence of
maintaining the project as'a "dry dam" creates unsightly
mudflats and accumulation of debris at outlet points in
the dam. Whilc,on the other hand, permanent impoundment
can accomplish the benefits of flood control without the
detriments present when the project is maintained as a
"dry dam."

43.

One significant advantage of maintaining a perma-
nent lake over the continued operation of the project as
a "dry dam" is the creation of a conservation pool capable
of providing the downstream communities with low flow
augmentation. Low flow augmentation benefits downstream
communities through pollution dilution and by maintaining
the river with a fairly constant flow of water. A constant
river level assists downstream communities in their water
supply and water treatment projects. In this respect, the
Court heard evidence at the trial from downstream com-
munities concerning the value derived from low flow
augmentation.

The plaintiffscontend that the issue of low
flow augmentation is an irrelevant factor to the decision
to impound by reason of the Corps' failure to obtain a
determination from the Administrator of the Environmental
Protection Agenty of the need for such augmentation. In
support of this position, the plaintiffs call the Court's
attention to the language present in the Federal Water
pollution Control Act (FWPCA), 33 U.S.C. § 1252(b), which
seemingly requires such authorization prior to the con-
sideration of low flow augmentation as a benefit to be
derived from impoundment. The Court disagrees with this
position for the reasons set forth by the Fourth Circuit
Court of Appeals in its decision in Cape Henry Bird Club
v. Laird, 484 F.2d 453 (4th Cir. 1973). The requirement
for authorization by the Administrator of EPA for considera-
tion of low flow augmentation pertains to only those pro-
jects in the "survey or planning stage." 33 U.S.C. g 1252(b)(1).
This amendment was added in 1972, while construction on

44.

this project began some time prior to that date. Accord-
ingly, since this project is neither in the survey or
planning stage, nor is it before Congress for authoriza-
tion or construction, the requirements of FWPCA are
inapplicable to the present controversy. In any event,
as previously discussed, the evidence is substantial that
the downstream communities will benefit greatly by the
availability of low flow augmentation from the proposed
impoundment.

The Court has not attempted to cover in detail each
and every objection posed by the plaintiffs to the pro-
posed impoundment. However, the Court has considered each
objection and the evidence in support thereof, and con-
cludes that each one fails for adequacy of proof.

The benefits derived from recreation, both in and
on the water and land, water supply, fish and wildlife con-
servation and flood control with low flow augmentation
seem to clearly tip the balance of environmental factors
in favor of impoundment.

The evidence clearly establishes, and is fully set
forth in the Corps' Notice of Decision to Impound, that all
adverse consequences and benefits from the impoundment
were taken into consideration prior to the issuance of the
decision. The plaintiffs contend that additional tests
and studies will indicate that their position is proper-
However, the plaintiffs have failed to satisfy the Court
that additional studies will result in any new or addi-.
tional evidence bearing on the reasonableness of the
Corps' decision. As previously mentioned, the environ-
mental impact statute does not require every conceivable
study be performed, rather, what is required is that the

45.

officials and agencies take a hard look at environmental
consequences. Sierra Club v. Froehlke, supra. In com-
piling an EIS and making a decision to proceed with a pro-
ject the agency must undertake in good faith a diligent
research effort. This the Corps has done. Oftentimes,
and such is the case here, certain assumptions must be
made, and when made in good faith and with a rational
explanation, the conclusions derived therefrom will not
be set aside.

In all environmental cases something short of
absolute certainty in a decision has to be accepted or
e lse no project could ever be completed. In the present
case, the Corps has considered the alternative of main-
taining a "dry dam" versus that of impoundment and con-
cluded that impoundment is more beneficial for the public.
This was a decision that Congress has delegated to the
Corps and will not be set aside by this Court unless it
was a clear error in judgment. Moreover, delay in impound-
ment was considered by the Army and rejected. Apparently,
the Corps concluded, and the Court sustains, the belief that
additional studies would be of little benefit in the ulti-
mate conclusion of this case.

The plaintiffs' objection to the general esthetic
appearance of the lake after impoundment is an objection
based upon purely subjective considerations. Opposing this
view, the Army has sought to compare the proposed Lake to
that of other lakes in the area. This comparison has been
made on the basis of certain similarities between the
Jordan area and that present in the region of other known
lakes. From this comparison, which the Court concludes was
not an unreasonable course to take, the Army has concluded
that the Jordan Lake will be similar in appearance and

46.

quality to that of other lakes presently existing in
North Carolina.

Certainly there are those who would prefer that
this arca remain in its natural state, however, the needs
and demands of a growing society often require the making
of hard decisions for the benefit of the greater number
of citizens. The Corps has conducted a thorough inter-
disciplinary examination of the environmental and economic
benefits and detriments of impoundment, and further, it
has considered the alternatives. available such as maintain-
ing Jordan as a "dry dam" or delaying impoundment, and has
reasonably concluded that the project should go forward.
Moreover, the Corps has considered possible adverse con-
sequences and achieved a sensible solution to them.
Accordingly, the Court concludes that the decision to
impound the B.Everett Jordan Dam Project was neither
arbitrary or capricious, and further, was not a clear
error in judgment.

VIII. CONCLUSION

Over thirty years ago Congress authorized an investi-
gation into the feasibility of constructing dams for the
control of flooding in this region. In 1963, Congress
authorized funds for the construction of this project so
that the citizens in this area could enjoy the benefits of
flood control, water quality control., general recreation,
and fish and wildlife conservation to be derived from this
project. Soon thereafter this litigation commenced send-
ing this case back and forth from the Fourth Circuit on two
occasions. Now, more than thirty-one years after Congress
recognized the need for this project, and more than seven
years after this litigation began, the Army Corps of
Engineers has concluded that the relevant environmental

47.

factors and goals set by Congress mandate the completion
of the final stage of this project; that is, the creation
of the B. Everett Jordan Lake. The Court has made a con--
sciencious effort to review all the objections raised by
the plaintiffs with the relevant data and material which
was available to the Army, and concludes that it cannot in
good faith block the final completion of this project.
This Court's power of judicial review in this case is a
narrow one. The Court's review should be applied with
reason and with unwavering adherence to the important goals
sought to be achieved by the mandates of this Nation's
environmental policy. However, the Court cannot substi-
tute its opinion for that of Congress, Accordingly, the
Court has attempted to observe the rule of reason and
practicality by taking a "hard look" at the relevant
environmental and economic factors presented by the Corps'
decision to proceed with the impoundment of the B. Everett
Jordan Dam. It is the conclusion of this Court that
the Corps of Engineers' decision to create the Jordan Lake
was not arbitrary, capricious or an abuse of discretion,
and further, that this decision was made in good faith
after a consideration of all relevant factors, including
possible alternative or mitigative measures.

Accordingly, the Court requests the defendant to
prepare a proposed judgment dismissing this action to be
submitted to the plaintiffs for delivery to the Court.

IT IS SO ORDERED.

United States District Judge

July 28, 1977