of the dam. The issues raised and proven by the Plaintiffs are ample to support the finding that the law has been violated, irrespective of the prior low level of opposition to the project.
It is unnecessary for the Court to delve into the requirements of the Council on Environmental Quality, an organization created by the National Environmental Policy Act, or regulations promulgated pursuant thereto because of the violation of the clear statutory language.
The Court is not persuaded that because the Buck Hill Falls dam is only one portion of a three-dam project, the importance of an environmental impact study is lessened.
3. Review of the Agency's Action with Respect to the Watershed Protection Act.
The Watershed Protection Act provides in relevant part that "No appropriation shall be made for any plan involving an estimated Federal contribution to construction costs in excess of $250,000 . . . unless such plan has been approved by . . ." the appropriate committees of Congress. 16 U.S.C. § 1002. The Act also authorizes the Secretary of Agriculture, upon approval by the local sponsoring agencies, "to make allocations of costs to the various purposes [of the project] to show the basis of such allocations and to determine whether benefits exceed costs;" 16 U.S.C. § 1003. Both statutes have given rise to a potpourri of regulations governing the administrative agencies.
The standards of reviewability of the agency's action with respect to the Watershed Protection Act are different from those under the National Environmental Policy Act. The former statute provides that the secretary "is authorized" to assemble a benefits-costs analysis of a project falling under the jurisdiction of the Act. The "is authorized" phrase suggests that the Secretary might not be required to do the analysis but in this case it was done, and it is the Court's responsibility to see that the law is complied with.
4. The Merits of the Watershed Protection Act Issue.
A. The Benefits-Costs Ratio. The testimony at the hearing revealed that the benefits to costs ratio of the dam is, according to the government's own computations, at best sesquivigesimal. This 1.05 to 1 margin is exceptionally close. Each dam in a multi-dam project must be separately justifiable. Chapter 1, Paragraph I(c) of the Economic Guide for Watershed Protection and Flood Prevention requires that a separate benefits-costs evaluation be done for each member of a project.
The benefits to costs ratio is challengeable insofar as it utilizes an outmoded discount rate of 3.25%. The Government takes the position that use of a 3.25% interest factor is authorized by the Water Resources Act, Public Law No. 93-251, § 80(b) (3/7/74, 88 Stat. 34). This is not correct. 3.25% interest with respect to costs may be used only if there were assurance of nonfederal funds by December 31, 1969. The assurance here did not come until 1971, at the earliest. Use of this low and inaccurate interest rate is itself enough to bring the benefits to costs ratio below 1:1.
B. The Resubmission Issue. Though the project of which the Buck Hill dam is a part was originally approved by the appropriate congressional committee some years ago, the Plaintiffs contend that the resubmission to Congress of the plans of the last remaining dam is nevertheless required. The Plaintiffs point out that (1) the Soil Conservation Service has eliminated one dam from the earlier plans for the project, (2) the "recreation" purpose of the project was dropped leaving only the "flood control" purpose, and, (3) there has been a substantial increase in the cost for the last remaining dam. Although a cogent argument is made by the Plaintiffs on this issue by virtue of substantial changes in the project, the resubmission issue need not be reached in view of the findings already made with respect to the Defendants' violation of the Watershed Protection Act.
An order in conformance with this Opinion has been issued.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court makes 171 Findings and Fact and 35 Conclusions of Law in Paragraphs separately numbered as set forth below:
Interested Parties 1.01-1.14
The Area 2.01-2.07
1955 Flood 3.01-3.02
Watershed Plan 4.01-4.18
Proposed Dam 5.01-5.34
Other Dams 6.01-6.09
Trout and Trout Stream 7.01-7.25
Pa. Fish Commission 8.01-8.11
Benefits to Costs Ratio 10.01-10.13
Effects of Dam 11.01-11.14
The Negative Declaration 12.01-12.12
Environmental Impact Statement 13.01-13.07
Conclusions of Law 14.01-14.35
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