Sierra Club v. Gilbert Stamm and other legal cases involving environmental impact statements

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6 ERC 1852 Sierra Club v. Stamm Sierra Club v. Stamm 6 ERC 1853 wherein it relates Sec. 102(2)(c) of NEPA to on-going projects and programs. 14. In accordance with the said CEQ Guidelines, the FES describes the physical ele­ments of the entire Bonneville Unit that are in various stages of final planning, design and construction. It explains and describes the en­tire Bonneville Unit to facilitate an overall ap­praisal of its environmental impact, and to al­low an objective examination of a reasonable array of alternatives to the proposed plan. It expressly states, however, tha_L.itJs intended to be the final impact statement only in regard to the Strawberry Aqueduct and Collection Sys­tem which has a high priority for construction. 15. There are numerous features to the Bonneville Unit, and project works will de­velop numerous sources of water supply, both in the Uintah Basin and in the Bonneville Ba­sin. However, the FES divides the entire Bon­neville Unit into six systems, according to lo­cation and function. The court finds that because of its size and complexity and the on­going construction program, the Bonneville Unit can best be described and its environmen­tal impact assessed by dividing it into said six systems, according to location and function, designated as follows: (1) Starvation Collec­tion System, (2) Strawberry Aqueduct and Collection System, (3) Diamond Fork Power System, (4) Irrigation and Drainage System, (5) Municipal and Industrial Water System, and (6) Bureau of Indian Affairs Activity. The Starvation Collection System, consisting of the Knight Diversion Dam, the Starvation Feeder Conduit, and the Starvation Reservoir have all been completed. The FES being challenged herein is the Final Environmental Statement on the Strawberry Aqueduct and Collection System, which is under construction. The FES expressly states that additional environmental statements will be prepared for all the other four Bonneville Unit systems which are pro­posed but are not yet under construction, so that the provisions of NEPA will be fully com­plied with prior to any decision to proceed with the remaining systems of the Bonneville Unit. [ 1 ] 16. The Strawberry Aqueduct and Collection System has an independent utility of its own as a collection and conveyance sys­tem of waters from the designated Uinta Mountain streams for storage in the enlarged Strawl>erry Reservoir for release and use in the Bonneville Basin. Such system can operate and function separately from the remaining unconstructed systems of the Bonneville Unit or other units of the Central Utah Project. The termini of the Strawberry Aqueduct and Collection System, comprising the Soldier Creek Dam on the westerly end, and the Up­per Stillwater Reservoir on the easterly end, the Bonneville Unit for discussion and analy­sis of the environmental impacts resulting / therefrom, which remain unchanged regard- I less of the systems to be constructed for deliv- >*"' ery and use of project waters within the Bon­neville Basin. The major federal action of Defendant Secretary Morton was limited to the approval of immediate construction of the Currant Creek Dam and to the continuation of the construction of the Strawberry Aqueduct and Collection System on a logical construc­tion schedule. The detailed discussion and analysis of the Strawberry Aqueduct and Col­lection System contained in the FES and the explanation and discussion of the entire Bon­neville Unit therein fully complies with the re­quirements of NEPA, and the applicable guidelines of the Council on Environmental Quality as to the scope, nature and extent of the project to be covered thereby. 17. The court finds that the four units of the Initial Phase and the Uintah and Ute In­dian Units of the Ultimate Phase is each sepa­rate and independent and designed and planned to operate independently of each other. Each will involve a different source of water supply. They will not be physically in­terconnected. The financial responsibility to pay the reimbursable portions of the construc­tion costs for each unit will be covered by sepa­rate contracts. Each unit has been separately i , funded by Congress for planning and those \___y' which are under construction are being sepa­rately funded by Congress for construction. Each unit and each system within the units will proceed on its own construction schedule, which on the Bonneville Unit extends through 1988. To require a single environmental state­ment on all the units of the Initial Phase, and the Uintah Unit and Ute Indian Unit of the Ultimate Phase would simply bring the entire development by Utah of its allotted share of Colorado River water to a halt, even though, the court finds, there is an immediate and crit­ical need for water. On these large projects which are to be constructed in successive phases or stages over a long period of years, the comprehensive development cannot as a practical matter be evaluated at a single mo­ment in time, because the later phases are in such a preliminary planning stage that an at­tempt at assessment of future environmental consequences from construction of a project not yet designed would be sheer guesswork. There could be so many conjectural alterna­tives, and alternatives to alternatives that the study, although costly, could serve no useful purpose, and the court finds that it is not nec­essary or desirable under NEPA to include all ( of said units in a single environmental impact V * statement. [ 2 ] 18. The court finds that plaintiffs evidence that any reasonable alternative was not considered and discussed in the FES, and i \ further affirmatively finds that the FES makes ^•^y a rigorous exploration and objective eval­uation of alternative actions that might avoid as many of the adverse environmental effects as is reasonably possible, and that all reason­able alternatives were fully analyzed and dis­cussed in detail therein; that maps showing all reasonable alternatives were included in the FES; that the costs of alternatives were deter­mined, examined and were fully evaluated; and that the environmental impacts resulting from such alternatives were fully examined and discussed; and that the availability of ground water, Weber Basin Project Water and the waters proposed to be developed under the Little Dell Project as alternative sources of water were fully and accurately analyzed and discussed in the FES. The court expressly finds that the FES is not defective, nor deficient, nor otherwise insufficient in its dis­cussion and examination of alternatives, but fully meets the requirements of NEPA in re­gard thereto. [ 3 ] 19. The court finds that nejther NEPA nor the CEQ Guidelines. datecTApriT" TS, 1971, require a benefit-cost _anafysis in moneUu^tej^js^jhe^nefic^^^ effecfs on the environmem. The court affirma­tively hnds trTatThe FES* fully and adequately sets forth, insofar as is reasonably possible, in appropriate quantitative and qualitative, physical, biological and other measures, such as acres of land inundated, miles of stream af­fected, surface acres of reservoirs created, loss of fishing days, and similar matters, reflecting the enhancement or the adverse effects on the environment, and that where such non-mone­tary effects are not amenable to quantity measurement, they have been reasonably de­scribed in appropriate qualitative terms. The court also finds that where markets do not ex­ist and there are no other established and ac­cepted criteria for placing monetary values on environmental impacts, the use of monetary values is unreliable. The court finds that plaintiffs failed to prove by a preponderance of the evidence that the environmental effects re­sulting from the construction of this project should be or can be reliably stated in monetary terms, or that there are established reliable criteria for placing monetary values on such environmental effects. 20. The court finds that Plaintiffs failed to prove by a preponderance of the evidence that the FES fails to assess the secondary con­sequences and effects of the construction of the v / project, and the Court affirmatively finds that N ^ the FES includes and fully and adequately de­scribes and analyzes the secondary significant compliance with NEPA and the CEQ Guide­lines dated April 23, 1971. 21. The federal Defendants fully complied with the procedural requirements of the Na­tional Environmental Policy Act of 1969 and Council on Environmental Quality Guide­lines, dated April 23, 1971, in their prepara­tion of the draft environmental statement, and filing copies thereof with the Council on Envi­ronmental Quality, and by making the same available to the public through an announce­ment in the Federal Register, and in consult­ing with and obtaining the comments of all Federal, State and local agencies which have jurisdiction by law or special expertise with respect to all environmental impacts involved, and in conducting public hearings thereon and likewise fully complied in their preparation of the Final Environmental Impact Statement, by including and responding to all comments received thereon from Federal, State and local agencies and from private organizations and individuals, and by filing copies thereof with the Council on Environmental Quality, and by making the same public, and by waiting the requisite periods of time before taking any ac­tion thereon. 22. On the 20th day of September, 1965, the United States of America, Ute Indian Tribe and intervenor The Central Utah Wa­ter Conservancy District entered into what is known as the Indian Deferral Agreement (No. 14-06-W-194) which was acknowledged by Congress on September 30, 1968, (43 U.S.C. 620a) under the terms of which the Ute Indian Tribe agreed to the construction of the Bonne­ville Unit without objection and that the use of water for 15,242 acres of Indian owned irri­gable land and not under irrigation may be de­ferred upon the condition that said lands be in­cluded in the Ultimate Phase of the Central Utah Project which, if not completed suffi­ciently to supply the therein defined Indian water rights by January I, 2005, then and in that event, equitable adjustment will be made to permit the immediate use of the water so re­served. TJhe_sajd_ Indian Deferral Agreement does not mandate or require the.construction oFoTher features of the Bonneville Unit nor other units of the Centra] Utah Project, since the terms thereof can be fulfilled without such construction. 23. That the large Jordan Aqueduct has been completed. It extends from a point near the Utah County-Salt Lake County line in South Salt Lake County, and extends north­ward along the west side of Salt Lake Valley where it interconnects with existing terminal storage, pumping plants and the general dis­tribution system of the Salt Lake County Wa­ter Conservancy District. With the completion of Currant Creek Dam, water can be delivered