ELR Citation: ELR 21238
No(s). s. 90-3049, -3050 (4th Cir. Jul 3, 1991)

The court holds that the Army Corps of Engineers did not violate the National Environmental Policy Act by failing to prepare an environmental impact statement (EIS) for its issuance of a Rivers and Harbors Act permit to Virginia Beach, Virginia, for construction of a water intake structure and pipeline from Lake Gaston to the city's water supply. The pipeline would divert 60 million gallons of water a day from the lake. The Corps concluded that the project would have no significant environmental impact. The permit directed the city to use storage water from a reservoir upriver from Gaston Lake to offset all downstream effects of its withdrawals, including an increase in lost flow days in the Roanoke River. The court first holds that the Corps' determination that this mitigation condition would eliminate the causes of controversy concerning the effect of the project on striped bass in the Roanoke River was not arbitrary or capricious. The Corps based its mitigation condition on the reasonable assumption that the number of lost flow days is the best measure of the effect of the pipeline on the bass. The court next holds that although some federal agencies requested that the Corps prepare an EIS, this alone is not grounds for a court to require an EIS. The court holds that the Corps' finding that the pipeline would have an insignificant effect on downstream water quality was not arbitrary or capricious and that the Corps discharged its duty to consider the cumulative effects of the pipeline with other existing or foreseeable environmental conditions. Finally, the court holds that the Corps properly discharged its duty to conduct a public policy review by considering the potential for growing water needs in both Virginia Beach and North Carolina.

[Previous decisions in this litigation are published at 17 ELR 21260 and 20 ELR 21070.]

Counsel for Appellant
Alan S. Hirsch, Special Deputy Attorney General
Department of Justice
P.O. Box 629, Raleigh NC 27602
(919) 733-3377

Patrick M. McSweeney
McSweeney, Burtch & Crump, P.C.
11 S. 12th St., P.O. Box 1463, Richmond VA 23212
(804) 783-6800

Counsel for Appellees
George A. Somerville
Mays & Valentine
1111 E. Main St., P.O. Box 1122, Richmond VA 23208
(804) 697-1200

Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Kiser, J. (before Hall and Niemeyer, JJ.):