ELR Citation: ELR 20197
No(s). 73-H-927 (S.D. Tex. Jan 22, 1974)

The Soil Conservation Service's (SCS) determination that a NEPA environmental impact statement is not required for a stream channelization project is found inadequate, and the agency is required to confer with plaintiffs and prepare within 30 days a summary of environmental mitigation measures to be implemented on the project. The agency's negative determination was not accompanied by an environmental appraisal as required by EPA regulations, and the court criticizes SCS officials who testified at the trial for being unfamiliar with the requirements of NEPA and the environmental effects of the project. Although the omission of the environmental appraisal would ordinarily justify injunctive relief, the court refuses to enjoin further construction of the project since an environmental record has been developed through judicial hearings and shows that the project, although a major federal action, will not significantly affect the environment if proposed mitigation measures are implemented. The court notes that an agency decision not to file an EIS should be tested by the reasonableness standard rather than by the substantial evidence test, and points out that once the plaintiff has made a prima facie showing of agency failure to adhere to the requirements of NEPA, the burden of proof shifts to the agency to support its environmental assessment by a preponderance of the evidence.

Counsel for Plaintiffs
Robert L. Burns
Sears & Burns
1811 C & I Building
Houston, TX 77002

Counsel for Defendants
Anthony J.P. Farris, U.S. Attorney
William Bowers
Charles B. Wolfe Asst., U.S. Attorneys
Federal Building
701 San Jacinto Street
Houston, TX 77002

Bill Payne
Lawrence, Thornton, Payne & Watson
308 E. 25th Street
Bryan, TX 77803