ELR Citation: ELR 20800
No(s). 75-1511 (10th Cir. Sep 29, 1976)

The court affirms a lower court's dismissal of a suit to enjoin the Corps of Engineers from constructing the Hillsdale Dam in Miami County, Kansas. Section 102(b)(3) of the Federal Water Pollution Control Act Amendments of 1972, which requires the EPA Administrator to determine the need for, and value of, storage for water quality control, does not apply to the Hillsdale Dam because Congress appropriated funds to initiate construction before the FWPCA was enacted. This provision applies only to those projects which are in the planning or preauthorization stages. The court notes that its view of §102(b)(3)'s inapplicability to the Hillsdale Dam is in accord with the position heretofore adopted by both EPA and the Corps. Plaintiffs are likewise mistaken in contending that the Corps' environmental impact statement for the project is inadequate. Evaluating the impact statement under a "good-faith" or "reasonableness" standard, the court concludes that the Corps gave sufficient consideration to the project's environmental impacts, possible alternatives and mitigation measures, and adequately discussed the project's cost/benefit ratio. The court finds that the Corps also complied with §309(b) of the Water Supply Act of 1958, which requires that the Corps have reasonable assurances from state and local interests concerning anticipated future water demands on the project.

Counsel for Plaintiffs-Appellants
Arthur A. Benson II
1024 Commerce Towers
Kansas City MO 64105
(816) 842-7604

Counsel for Defendants-Appellees
Eva R. Datz
Jacques B. Gelin
Department of Justice
Washington DC 20530
(202) 739-2827

E. Edward Johnson, U.S. Attorney
Roger K. Watherby, Asst. U.S. Attorney
U.S. Post Office Building
5th St. & Kansas Ave.
Topeka KS 66603
(913) 234-8247

Counsel for Intervenor Appellee City of Olathe, Kansas
F. Phillip Kirwan
Margolin & Kirwan
1000 United Missouri Bank Bldg.
Kansas City MO 64106
(816) 842-7080

McWilliams, J.; Barrett and Doyle, JJ., concur.