Jul 13: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-1739. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. The Appeals Court provides background saying that over thirty-five years ago, the Natural Resources Conservation Service (NRCS), working with local sponsors, devised a project to provide watershed protection, flood prevention, and recreation along the Lost River Subwatershed. The proposed project involved a combination of land-treatment measures and five dams and impoundments. In 1974, the NRCS issued an environmental impact statement relating to the project, and since that time, three dams and most of the land-treatment measures have been completed.
After preparing a supplemental environmental impact statement in 2009, the NRCS issued a record of decision that eliminated one of the remaining dams from the project and authorized construction of the final dam for the added purpose of providing water supply. Appellants, seven individuals who allege that their land will be adversely affected by this final dam's construction, filed this action contending that the NRCS has failed to comply with the National Environmental Policy Act (NEPA).
Appellants appeal the district court's order granting Appellees' motion for summary judgment. Because we determine that the The Appeals Court ruled, "NRCS has complied with the procedures mandated by the NEPA and taken a hard look at the project's environmental effects, we affirm."
On one issue raised by Appellants the Appeals Court rules, "Even assuming that the NRCS did not ask the Army Corps to participate as a cooperating agency and that it should have done so, such error was harmless. See United States v. Coal.
for Buzzards Bay, 644 F.3d 26, 37 (1st Cir. 2011) (recognizing that harmless-error review applies to violations of the NEPA). Despite bearing the burden to establish harm, see id., Appellants fail to show, or even suggest, any harm that resulted from the failure to designate the Army Corps as a cooperating agency. Nor do we identify any harm resulting from this failure. In fact, the record reflects that the NRCS provided the Army Corps opportunities to participate in preparing both the 2007 SEIS and the 2009 SEIS, and that the Army Corps took advantage of at least some of these opportunities. . ."
On another issue, "Appellants argue that the NRCS should not have issued the 2009 SEIS prior to receiving the Clean Water Act Section 404 permit from the Army Corps. But we are aware of no requirement that the NRCS obtain necessary permits before issuing an EIS. To the contrary, the CEQ's regulations mandate only that it list all necessary federal permits in a draft EIS. See 40 C.F.R. § 1502.25(b). Thus, the NRCS's issuance of the 2009 SEIS before obtaining the requisite permit from the Army Corps does not violate the NEPA."
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