ELR Citation: ELR 20633
No(s). 90-4761 (5th Cir. Jan 28, 1992)

The court holds that the state river management agency has standing to challenge the Fish and Wildlife Service's (FWS') failure to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) for the acceptance of a nondevelopment easement on land containing wetlands and wildlife habitat, but that acceptance of the easement was not a major federal action significantly affecting the environment requiring an EIS under NEPA. The state agency suffered an economic injury by not being able to condemn the property to build a reservoir for future water supply. This is sufficient under the constitutional injury-in-fact test and statutory nexus test to confer standing. One of the purposes of NEPA is to protect water supply and quality. The court holds under de novo review that FWS' decision not to prepare an EIS was not arbitrary or capricious. The acquisition of the easement did not effectuate any change in the environment, especially one that could be considered a major federal action with a significant impact requiring an EIS. In addition, there is no clear connection between the acceptance of the easement and a future water shortage.

Counsel for Plaintiff-Appellant
William H. Burchette
Jorden, Schulte & Burchette
1025 Thomas Jefferson St. NW, Ste. 400E, Washington DC 20007
(202) 965-8100

Counsel for Defendants-Appellees
Lisa Hemmer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before GOLDBERG and GARWOOD, Circuit Judges, and BUCHMEYER,^* District Judge: