Warm Springs Dam Task Force v. Lieutenant General William C. Gribble, Jr.

621 F.2d 1017 14 ERC 1744 , 10 Envtl. L. Rep. 20 ,559 WARM SPRINGS DAM TASK FORCE et al., Plaintiffs-Appellants, v. Lieutenant General William C. GRIBBLE, Jr., et al., Defendants-Appellees. No. 77-2301. United States Court of Appeals, Ninth Circuit. June 23, 1980. Wm. R. Shepard, McCarthy, Johnson, Miller & Shepard, San Francisco, Cal., Leslie R. Perry, Luke, Libicki & Perry, Santa Rosa, Cal., argued, for plaintiffs-appellants. Rodney H. Hamblin, Asst. U. S. Atty., San Francisco, Cal., Jacques B. Gelin, Washington, D. C., argued, Richard Ergo, Deputy County Counsel, Santa Rosa, Cal., on brief, for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before BROWNING, KENNEDY and HUG, Circuit Judges. PER CURIAM: 1 This case involves the adequacy of an Environmental Impact Statement (EIS), as supplemented, prepared by the Army Corps of Engineers for the construction of Warm Springs Dam in Northern California. The central issue is whether the Corps was required to supplement its EIS further when it became aware of a U.S. Geological Survey (USGS) study indicating that the Maacama Fault, which at its closest point is six…

This case involves the adequacy of an Environmental Impact Statement (EIS), as supplemented, prepared by the Army Corps of Engineers for the construction of Warm Springs Dam in Northern California. The central issue is whether the Corps was required to supplement its EIS further when it became aware of a U.S. Geological Survey (USGS) study indicating that the Maacama Fault, which at its closest point is six miles from the dam, might be capable of generating an earthquake of greater magnitude than the dam was designed to withstand.

The case is on appeal from the district court’s denial of a permanent injunction against further construction on the project. Appellant is the Warm Springs Dam Task Force (Task Force). We affirm.

I.

HISTORY OF LITIGATION

The Warm Springs Dam is designed to be a 319-foot earth-fill dam across Dry Creek, a major tributary of the Russian River in Sonoma County, California. The dam would create Lake Sonoma, with a surface of 3,600 acres and a storage capacity of 381,000 acre-feet of water, and would serve the combined purposes of flood control, water conservation and recreation. The dam site is located on the inactive Dry Creek earthquake fault. Several…

concurring:

The adequacy of an agency’s response to “significant new information” is a point on which authority is scarce, and the question will assume ever greater importance as the life cycle of projects requiring NEPA compliance lengthens. Vermont Yankee emphasized that an EIS must be finished at a fixed time, and yet the CEQ regulations reasonably recognize that in some instances new evidence may be revolutionary enough to require a new or supplemental EIS. Our present interpretation of 40 C.F.R. § 1502 .-9(c)(l)(ii) finds support in an analogous section on “Incomplete or Unavailable Information.” See 40 C.F.R. § 1502.22 (b)(2); Gelpe & Tarlock, The Uses of Scientific Information in Environmental Decision-making, 48 S.Cal.L.Rev. 371, 392-96, 419-27 (1974).

Not every item of new evidence requires a formal EIS or supplement. There are other and less cumbersome ways for an agency to evaluate new information and explain why it finds no need for a new EIS. I agree with the court that the Maacama Fault Study performed this needed function here. I concur in the judgment.