Bear Creek Law Suit

---

Law Suit Filed - Ozark Society vs. United States Army Corps of Engineers

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION
OZARK SOCIETY; ARKANSAS CANOE  CLUB; SIERRA CLUB; NATIONAL PARKS CONSERVATION ASSOCIATION;   AMERICAN RIVERS; SAVE OUR STREAM; ARKANSAS WILDLIFE FEDERATION   

Plaintiffs,   COMPLAINT v. DAVID F. MELCHER, Brigadier General, United States Army Corps of Engineers; THOMAS E.WHITE, Secretary of the Army; UNITED STATES ARMY CORPS OF ENGINEERS,

Defendants.   

1. Plaintiffs Ozark Society, et al. hereby challenge Defendants' United States Army Corps of Engineers, et al. ("Corps") issuance of a permit under section 404 of the Clean Water Act to authorize or allow the construction of a dam on Bear Creek in Arkansas. The Corps illegally issued the permit prior to a determination by the Secretary of the Interior that the dam would protect and enhance and not unreasonably diminish the scenic, recreational, and fish and wildlife values of the Buffalo National River. Second, the Corps illegally issued a permit to build the dam even though a practicable alternative -- the construction of a pipeline from an existing dam -- would supply county water needs, and would have less adverse impact on the aquatic ecosystem. Third, the Corps' issuance of the permit was based on a deficient environmental assessment, and it constitutes a major federal action significantly affecting the environment, which requires the preparation of an environmental impact statement under the National Environmental Policy Act.

Jurisdiction.

2. This lawsuit alleges violations of the Buffalo National River enabling legislation, 16 U.S.C. ' 460m-11, the National Environmental Policy Act ("NEPA"), 42 U.S.C. '' 4331 et seq., the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. '' 1251 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. '' 701 et seq. This Court has jurisdiction pursuant to 28 U.S.C. ' 1331. This Court may issue declaratory relief pursuant to 28 U.S.C. ' 2201, and this Court may issue injunctive relief pursuant to 28 U.S.C. ' 2202, 5 U.S.C.' 705, and 5 U.S.C. ' 706(1).

3. The Buffalo National River is located in Arkansas, and agency actions challenged herein were made in Arkansas. Venue is proper in this Court under 28 U.S.C. ' 1391(e). The Eastern District of Arkansas is the appropriate division for filing of this suit.

4. Reviewable final agency action exists that is subject to judicial review under 5 U.S.C. ' 702 and 5 U.S.C. ' 704. A present and actual controversy exists between the parties to this action. Plaintiffs may be entitled to attorneys fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. ' 2412(d).

Parties.

5. Plaintiff Ozark Society was founded in 1962 for the immediate purpose of saving the Buffalo River from dams proposed by the U.S. Army Corps of Engineers. The Ozark Society was a leader in the campaign to create the Buffalo National River as an alternative to the dams. That campaign culminated in the passage of the Buffalo National River enabling act in 1972. The Ozark Society is based in Little Rock, Arkansas, and it currently has approximately 800 member households, most of whom are located in Arkansas, Louisiana, Oklahoma and Missouri. The Ozark Society's principal mission is the preservation of wild and scenic rivers, wilderness, and unique natural areas. The Ozark Society's members often visit, use and enjoy the Bear Creek and Buffalo National River watersheds and intend to continue to visit, use and enjoy Bear Creek and the Buffalo National River. The Ozark Society's members will be harmed by the Bear Creek Dam as alleged below.

6. Plaintiff Arkansas Canoe Club was founded in the 1970s and is a conservation group of roughly 500 households that focuses on recreation. Its members foster and promote the interest of people who find recreation and relaxation in paddling canoes, kayaks, rafts and other similar personal watercraft; for companionship in group activities; to exchange information of special interest to all phases of paddling; and to act together to preserve the wilderness character of our waterways by advancing public relationships with government agencies and the general public. Members of the Club paddle the Buffalo National River and its tributaries hundreds of times each year, and members are anglers who fish Bear Creek and the Buffalo National River. The Arkansas Canoe Club's members will be injured by the Bear Creek Dam as alleged below.

7. Plaintiff Sierra Club is a national nonprofit corporation of over 550,000 members that works on behalf of the public interest in part to protect, preserve and enhance Arkansas's waters. There are approximately 1500 Sierra Club members in Arkansas, many of whom fish, swim, and recreate in the Buffalo National River. Sierra Club members also observe and enjoy numerous migratory and indigenous flora and fauna species, including threatened and endangered species that are either listed or proposed to be listed under the ESA. The Sierra Club's members will be injured by the Bear Creek Dam as alleged below.

9. Plaintiff National Parks Conservation Association ("NPCA") is a private nonprofit conservation advocacy organization whose purpose is to protect, preserve, and restore the National Park System, including the Buffalo National River. NPCA has about 425,000 members, including roughly 2,250 in Arkansas. NPCA has a southeast regional office in Clinton, Tennessee. That office submitted comments on the proposed dam on Bear Creek, and it has been actively involved in similar threats to national park system resources, including other dam proposals, air pollution, overflights, and inappropriate adjacent land uses. NPCA's members will be harmed by the Bear Creek Dam as alleged below.

10. Plaintiff American Rivers is a national nonprofit conservation organization dedicated to protecting and restoring America's rivers. Founded in 1973, American Rivers currently has over 31,000 members. The principal office of American Rivers is located in Washington, D.C., and American Rivers has a regional office in Chattanooga, Tennessee. In addition to protecting nationally significant rivers, American Rivers' programs focus on dam removal, flood control and hydro-policy reform, endangered species protection, and water quality and quantity. Along with its conservation efforts, American Rivers promotes public awareness about the importance of
healthy rivers. American Rivers' members will be harmed by the Bear Creek Dam as alleged below.

10. Plaintiff Save Our Stream, founded in 1996, is dedicated to preserving endangered streams in Arkansas. Save Our Streams has approximately 100 members, many of whom paddle and fish the Buffalo River and recreate in the Bear Creek watershed. Save Our Streams is a leader in Arkansas in water conservation efforts. It was awarded the Conservationist of the Year award by the Arkansas Wildlife Federation in 1999, and it was honored for providing the best promotion of aquatic conservation at the 2001 Stream Team convention organized by the Arkansas Game and Fish Commission. Members of Save Our Streams will be injured by the Bear Creek Dam as outlined below.

11. Plaintiff Arkansas Wildlife Federation is a private, non-profit corporation, incorporated in the State of Arkansas and founded in 1936. Although a separate legal entity, the Arkansas Wildlife Federation is the state affiliate of the National Wildlife Federation. With approximately 2900 members, the Arkansas Wildlife Federation's mission is to promote conservation, responsible management and sustainable use of Arkansas' fish and wildlife habitat, natural resources and outdoor recreational opportunities through education and advocacy. Members of the Arkansas Wildlife Federation often paddle and fish on the Buffalo River and recreate in the Bear Creek Watershed. The Arkansas Wildlife Federation was an important participant in the campaign to establish the Buffalo River as a National River. Members of the Arkansas Wildlife Federation will be injured by the Bear Creek Dam as alleged below.

12. Plaintiffs' members often visit, use and enjoy the Bear Creek and the Buffalo National River, and intend to continue to visit, use and enjoy Bear Creek and the Buffalo National River. The Corps' issuance of the construction permit will adversely affect Plaintiffs' members by, among other things, depleting the free-flow of water in the rivers; degrading their water quality; impairing fish and wildlife and their habitat; and depriving Plaintiffs' members of their right to be fully apprised of and influence agency decisions concerning the environmental impacts of the proposed dam.

13. David F. Melcher is a Brigadier General for the United States Army Corps of Engineers, Dallas, Texas. Mr. Melcher is sued in his official capacity. Mr. Melcher signed the decision document and executed the environmental assessment and finding of no significant impact through which the Corps issued the permit to allow or authorize construction of the dam.

14. Thomas E. White is the Secretary of the Army. Mr. White is sued in his official capacity. Mr. White is ultimately responsible for the actions of the United States Army Corps of Engineers and its employees.

15. The United States Army Corps of Engineers is an agency of the Department of the Army. The agency is responsible under federal law for compliance with relevant federal laws and policies.

Allegations.

16. The Buffalo National River is one of the most outstandingly scenic free-flowing rivers in the United States. This is due to its remarkable combination of favorable attributes. The river has clean, flowing waters. Its headwaters originate within the Ozark National Forest, and the Buffalo River and its tributaries comprise one of the richest waterways in the nation in terms of total number of fish species. Massive bluffs and deeply entrenched valleys provide a spectacular scenic setting, and the varying elevations and exposures present a variety of conditions for some 1,500 species of plants. Additionally, the Buffalo River is one of the few major undammed stream in the Arkansas Ozark Mountains.

17. In 1972, Congress enacted enabling legislation authorizing the Secretary of the Interior to establish and administer 132 miles of the Buffalo River as a "national river." Congress also purchased a river corridor of roughly 94,000 acres, and designated the National Park Service as manager of these and other lands. The status of the Buffalo National River and adjacent riparian lands is comparable to a national park. The Buffalo National River's enabling act requires the Secretary of the Interior to determine the impact of any proposed water resources project that may affect the river.

18. In July, 1997, the Searcy County Regional Water District ("Searcy County") submitted an application for a section 404 Clean Water Act permit to the Corps for the construction of a dam and water supply reservoir on Bear Creek, a tributary to the Buffalo National River. The stated purpose of the project is to build a dam to impound Bear Creek and create a regional water supply reservoir. The Bear Creek Dam would be about 700 feet long and 107 feet high and form a 92.5-acre reservoir, converting approximately 13,000 feet of streambed to reservoir habitat. The Bear Creek Dam is a "water resources project" under the Buffalo National River enabling act. The issuance of a Clean Water Act section 404 permit constitutes agency "assistance" to such a project under the Buffalo National River enabling act.

19. The proposed site for the Bear Creek Dam lies approximately 26 miles upstream from the confluence of Bear Creek and the Buffalo National River. Bear Creek is a major tributary of the Buffalo National River. The Bear Creek watershed above the proposed dam comprises roughly ten percent of the Buffalo National River's drainage. The Bear Creek watershed hosts a variety of important recreational, scenic, and fisheries values.

20. In October, 1999, the Secretary of the Interior, through the National Park Service, wrote the Corps, requesting that the Corps not issue a section 404 permit application until such time as the Park Service could determine the impacts of the Bear Creek Dam on the Buffalo National River. In December, 1999, the Corps wrote the National Park Service, stating that it would not hold in abeyance its decision on the permit application pending a determination by the Park Service of the impacts of the dam on the river.

21. In May, 2000, the Corps released an "environmental assessment" ("EA") under NEPA that ostensibly evaluates the impacts of the Bear Creek Dam and alternatives to it. In the EA, the Corps decided that the District's proposal and one action alternative, called the "Clinton-Marshall Pipeline," were the only alternatives that should be considered in detail. The pipeline would channel water from an existing dam that creates Greers Ferry Lake through a 37-mile pipeline to water supply facilities. After evaluating the environmental impacts of both action alternatives, the Corps found that the dam would have greater adverse environmental impacts than the pipeline. The
Corps found that the dam would cause permanent adverse impacts to approximately 2 miles of Bear Creek, or about 9.5 acres of the bed of Bear Creek and three tributaries. In contrast, the Corps determined that the pipeline would involve no permanent adverse impacts to aquatic resources.

22. In preparing the EA, the Corps failed to conduct important and necessary site-specific fisheries or geomorphic studies, quantitative assessments of flow records and predictive modeling, or other technical assessments. Among other deficiencies, the Corps failed to model the disruption of natural flows in Bear Creek and the Buffalo River caused by the proposed Bear Creek Dam; ignored the significant difference in runoff coefficients between the upper and lower Bear Creek Basin; neglected to quantify the impacts on Bear Creek and the Buffalo River when the reservoir is refilling; and failed to assess the migration patterns of fish and other aquatic wildlife migration between the Buffalo National River and Bear Creek Dam site.

23. The proposed dam and reservoir would impact the natural shape, magnitude, duration, and frequency of storm hydrographs, as well as the total amount of water delivered from the Bear Creek Basin to the Buffalo National River. Many of the important physical and ecological values for Congress established the Buffalo National River are tied to maintenance of natural flows. For a precise quantification of adverse hydraulic deviation from natural flow, further scientific studies are needed. Recently, the National Park Service and the U.S. Geological Survey established a stream flow gauging station on Bear Creek. These data, undoubtedly the most important source of site-specific hydrological data, were ignored or dismissed in the EA. There is only one instantaneous discharge mentioned in the entire EA from the Bear Creek gauge. The EA fails to consider, analyze, or disclose flow regimes and disturbances posed by the Bear Creek Dam.

24. It is reasonably foreseeable that the Bear Creek reservoir will serve as a pathway to the introduction of exotic aquatic species. These introductions could have a direct and adverse impact on the Buffalo National River. The invasion of non-native species within Bear Creek and Buffalo National River must be fully considered, disclosed, and analyzed if any impoundment is to be managed for any type of recreational fishery. The negative effects of dams on populations of migratory fishes is well-known. Yet the importance of fish and wildlife migration between Buffalo National River, the Bear Creek Dam site, and variously impacted reaches of the Buffalo National River was not adequately assessed in the EA.

25. The dam's reservoir would be located in a pristine portion of the Bear Creek basin. The proposed reservoir would reduce dilution of point and nonpoint pollutants generated in other portions of the basin. The EA, while recognizing the fact that 17 percent of the forest runoff in the Bear Creek drainage would be above the lake, fails to adequately assess losses in this component of dilution in light of the current water quality problems in the area. These problems include fecal coliform counts 112 times greater than state standards, nitrate concentrations 40 times higher than background concentrations, and total phosphate concentrations 7 times higher than state guidelines. The water quality of Bear Creek directly affects the water quality of the Buffalo National River and the river's scenic, recreational, and fish and wildlife values.

26. The dam would disconnect the headwaters of Bear Creek from lower stream reaches, would significantly and detrimentally alter the stream's physical and biological gradients, and would disrupt the physical habitat and macroinvertebrate community of Bear Creek and mid-reaches of the Buffalo National River. At least 19 species of fish and 24 species of macroinvertebrates that have been recorded in the stream reach where the dam is proposed. The diversity of species and relative abundance of aquatic macroinvertebrates present in a stream community directly affects fish community species composition and abundance, because most fish species have life cycles that are dependent on an insect-based food source during larval development.

27. Alteration of natural flows would adversely impact gravel transport, bed scour, and other processes, which maintain aquatic and riparian habitat, as well as pool and riffle complexes in Bear Creek and the Buffalo River. Over time, the loss of flood magnitude and frequency would likely result in the loss of aquatic ecosystem diversity, productivity and stability. The dam would destroy designated special aquatic sites by destroying pool and riffle complexes upstream of the dam and altering water flow downstream of the dam. This alteration in the hydrologicregime would disrupt the natural maintenance of aquatic habitats and allow accumulation of fine silt in
portions of the steam below the dam that would degrade and destroy important spawning habitat for many species of fish.

28. The construction of the dam and filling of the reservoir will also likely have a detrimental impact on species listed under the Endangered Species Act. The dam and reservoir sites contain suitable habitat for the Ozark big-eared bat, the Indiana big-eared bat, and bald eagles. Although initial surveys conducted for the Corps failed to identify any resident Ozark big-eared bats, these surveys were flawed, because they occurred during the bat's hibernation period. The Secretary of the Interior through the U.S. Fish and Wildlife Service recommended that the Corps conduct additional surveys for bats. However, the Corps failed to conduct such surveys, and reinvestigate the dam site. Moreover, the Corps never consulted with the Fish and Wildlife Service about the impacts of the dam construction on bald eagles and Indiana big-eared bats. Without sufficient information about endangered and threatened species in the area, it is likely that the dam construction will adversely impact already impaired species. The EA fails to adequately consider the impacts of the dam on these species. These and other reasonably
foreseeable impacts will unreasonably diminish the recreational, fish, and wildlife values of the Buffalo National River.

29. Although the Corps failed to adequately examine the significant impacts of the proposed dam, on May 9, 2000, the Corps, acting through its Little Rock District, denied Searcy County's application for a permit. The Little
Rock District found that the pipeline was a practicable alternative that would have less adverse impact on the aquatic ecosystem than the dam. The Clean Water Act requires the Corps to apply guidelines developed by the Environmental Protection Agency ("Section 404(b)(1) Guidelines") when considering whether to issue a permit to allow dredge and fill activities. The guidelines prohibit the discharge of dredged or fill material if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem.

30. The Little Rock District based its determination that the pipeline was a practicable alternative on several factors. First, the pipeline would provide the same amount of water to affected areas of Searcy and Newton Counties, and could be designed to allow for increased water delivery. Second, the pipeline would divert water from an existing reservoir with a large storage volume and sufficient amounts of water. Third, should future water use increase, the existing reservoir and pipeline could adequately supply more water, without the construction of additional dams and reservoirs. Further, the Little Rock District determined that the flexibility of the pipeline would have greater beneficial value than the comparative inflexibility of the dam. Finally, while the pipeline would cost more than the dam, the Little Rock District calculated that this increase would not impose a significant financial burden on households that use water.

31. Searcy County appealed the denial of the permit application to the Southwest Division Engineers of the Corps of Engineers in Texas ("Southwest Division"). On November 9, 2000, the Southwest Division vacated the denial of the permit, and remanded the matter back to the Little Rock District. The Southwest Division instructed the Little Rock District to reevaluate (1) the environmental impacts of the dam and the pipeline and any significant issues of overriding importance which compel permit denial; and (2) the projected costs of each alternative.

32. The Little Rock District reevaluated the environmental impacts of the dam and the pipeline. Subsequently, the Little Rock District found that "the Bear Creek Dam would have clearly more permanent adverse impacts than the Greers Ferry Lake pipeline alternative." The Little Rock District determined that although the dam would result in a monthly cost to water consumers of roughly four dollars more than the cost of water delivered via the pipeline, "the pipeline alternative is no more cost prohibitive than the Bear Creek Dam alternative." In fact, the Little Rock District found that "either alternative may not be feasible without additional income or support from other sources." The Little Rock District also determined that "the proposed project does not comply with the [Section] 404(b)(1) guidelines" related to the Corps' issuance of permits, because the pipeline is a practicable alternative with less adverse impact on the aquatic ecosystem.

33. The Little Rock District noted in its report to the Southwest Division that the Secretary of the Interior through the U.S. Fish and Wildlife Service again made recommendations to the Corps. The Fish and Wildlife Service recommended that the Corps deny the permit. The Fish and Wildlife Service recommended that the Corps prepare an environmental impact statement on the proposed dam and a full range of alternatives to it. The Fish and Wildlife Service recommended that the Corps perform additional studies to allow the Service to determine the potential adverse effects of the dam on the Buffalo National River. And the Fish and Wildlife Service recommended that the Corps conduct a comprehensive survey to determine the presence of Ozark big-eared bat habitat.

34. After further review, and considering the Fish and Wildlife Service's recommendations, the Little Rock District again recommended denial of the permit application.

35. On August 3, 2001, the Southwest Division issued a document entitled "Environmental Assessment and Statement of Findings," and issued a decision document granting Searcy County's permit application. This assessment, if distinct from the assessment prepared by the Little Rock District, is also deficient under NEPA, because among other things it fails to analyze the impacts of the dam and reservoir on the values of the Buffalo National River; it inadequately considers the impacts on the hydrology or water quality of Bear Creek or Buffalo National River; it ignores the potential for introducing exotic species; it inadequately assesses the impact on aquatic species in Bear Creek and Buffalo National River; and it improperly dismisses the potential impact of the dam and reservoir on endangered and threatened species. Further, the Corps failed to conduct important studies and based its analysis on incomplete information. However, the second assessment differed from the first in two respects. First, where the Little Rock District in the first EA concluded that the dam would have significant adverse environmental impacts, the Southwest Division in the second EA dismissed these impacts, stating that such impacts are common to any dam and reservoir project. Second, the Southwest Division in the second EA determined that the pipeline was not a practicable alternative because it would cost more than the reservoir alternative over a thirty-year period. However, the Southwest Division made this determination based on insufficient data and an incorrect analysis. The Corps' issuance of the decision document and permit constitutes final agency action subject to judicial review.

Claims for Relief.

Claim One: Violation of the Buffalo National River's Enabling Act.

36. Plaintiffs reallege paragraphs 1 - 34.

37. The Buffalo National River enabling act provides that "no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river is established, as determined by the Secretary [of the Interior]." 16 U.S.C. ' 460m-11. The Corps issued to Searcy County a permit to construct the Bear Creek Dam before the Secretary of the Interior did or could determine that (a) the dam would not have a direct and adverse effect on the values for which the Buffalo River was established, or (b) the dam would not unreasonably diminish the scenic, recreational, and fish and wildlife values of the Buffalo National River. The Corps' failure to hold the permit in abeyance before such a determination violates the Buffalo National River enabling act.

Claim Two: Violation of the National Environmental Policy Act.

38. Plaintiffs reallege paragraphs 1-36.

39. NEPA requires an environmental assessment ("EA") to determine if an environmental impact statement ("EIS") is necessary. 42 U.S.C. ' 4332(2)(C). Both documents produced by the Corps that purport to be EAs are deficient and violate NEPA. Among other deficiencies previously alleged, the assessments: 1) fail to model the disruption of natural flows in Bear Creek and the Buffalo River caused by the proposed Bear Creek Dam; 2) ignore the significant difference in runoff coefficients between the upper and lower Bear Creek Basin; 3) neglect to quantify the impacts on Bear Creek and the Buffalo River when the reservoir is refilling; 4) fail to assess the migration patterns of fish and other aquatic wildlife migration between the Buffalo National River and Bear Creek Dam site, and (5) are deficient in other respects to be determined after the filing of the administrative record and completion of discovery.

Claim Three: Violation of the National Environmental Policy Act.

40. Plaintiffs reallege paragraphs 1-38.

41. NEPA requires the preparation of an environmental impact statement for "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. ' 4332(2)(C). The Corps of Engineers' issuance of a permit to authorize or allow the construction of the Bear Creek Dam constitutes a major federal action significantly affecting the environment and therefore requires preparation of an EIS. Accordingly, the issuance of the FONSI under NEPA was illegal, and the Corps' failure to prepare an EIS violates NEPA.

Claim Four: Violation of the Clean Water Act and the 404(b)(1) Guidelines

42. Plaintiffs reallege paragraphs 1-40.

43. Section 404(b)(1) of the Clean Water Act requires the Corps of Engineers to determine whether to issue a dredge and fill permit based on guidelines developed by the Administrator of the Environmental Protection Agency. 33 U.S.C. ' 1344(b)(1). Under these "404(b)(1) Guidelines," the Corps of Engineers cannot legally issue a Section 404 permit if a practicable alternative exists that will have less adverse impact on the aquatic ecosystem. 40 C.F.R. ' 230.10(a). An alternative is considered practicable if it is "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of the overall purpose." 40 C.F.R. ' 230.10(a)(2). The pipeline is a practicable alternative that will have less adverse impact on the aquatic ecosystem than the dam. The Corps of Engineers' finding that no practicable alternative to the dam is wrong, and its decision violates the Clean Water Act and regulations implementing the Clean Water Act.

Claim Five: Violation of the Administrative Procedures Act.

44. Plaintiffs reallege paragraphs 1 - 42.

45. Section 10 of the APA provides that agency action is unlawful where it is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5. U.S.C. ' 706(2)(A). The Corps of Engineers violated the APA by (1) arbitrarily and capriciously issuing the permit in abeyance prior to and without a determination by the Secretary of the Interior that the dam would not unreasonably diminish the scenic, recreational, and fish and wildlife values of the Buffalo National River; (2) arbitrarily and capriciously preparing a deficient EA, and failing to prepare an Environmental Impact Statement, as required by NEPA; and (3) arbitrarily and capriciously granting the permit, despite the existence of a practicable and less damaging alternative.

Relief Requested.

For the foregoing reasons, Plaintiffs respectfully request that this Court:

1. Declare that Corps has violated the Buffalo National River enabling act and the APA by issuing the Bear Creek Dam permit prior to and without a determination by the Secretary of the Interior that the dam will not unreasonably diminish the scenic, recreational, and fish and wildlife values of the Buffalo National River.

2. Declare that the Corps of Engineers violated NEPA by preparing a deficient EA, issuing a FONSI and decision notice, and failing to prepare an environmental impact statement.

3.  Declare that the Corps of Engineers violated the Clean Water Act and the APA by issuing a permit to construct the dam when there was a practicable alternative with less adverse impact on the aquatic ecosystem.

4. Vacate the Corps of Engineers' section 404 permit issued to Searcy County.

5. Award Plaintiffs reasonable attorney fees and costs related to this action.

6. Grant such additional relief as the Court deems just and proper.

Respectfully submitted,

HANK BATES, ABN 98063
McMath, Vehik, Drummond, Harrison & Ledbetter, P.A.
711 West Third Street
Little Rock, Arkansas 72201
(501) 396-5400; (501) 374-5118 (facsimile)
Internet e-mail address: hank@mcmathlaw.com

Attorneys for Plaintiffs

Peter M. K. Frost
Western Environmental Law Center
1216 Lincoln Street
Eugene, Oregon 97401
(541) 485-2471; (541) 485-2457 (facsimile)
Internet e-mail address: frost@westernlaw.org

Return to Home Page