The opinion of the court was delivered by: MUIR
This suit for injunctive relief was tried to the Court with an advisory jury from April 12, 1976 through April 21, 1976. The Court makes the following findings of fact.
1. Plaintiff is an unincorporated association. (Uncontested)
2. The Tioga-Hammond Lakes Project (project) was authorized by the 85th Congress in the Flood Control Act of July 3, 1958, Public Law 85-500, in accordance with the recommendations of the Chief of Engineers in House Document 394, 84th Congress, Second Session. (Uncontested)
3. A substantial number of the members of the Plaintiff group is affected by the Tioga-Hammond Dam Project, each of them having a personal stake in the outcome of this litigation.
4. The Defendant U.S. Corps of Army Engineers has been authorized to carry out the Tioga-Hammond Dam Project. (Uncontested)
5. The Tioga-Hammond Dam Project is one part of a projected system of reservoirs to reduce flood damage within the North Branch of the Susquehanna River Basin. (Uncontested)
6. The project is located in Tioga County, Pennsylvania, upstream from the confluence of Tioga River and Crooked Creek. (Uncontested)
7. The project consists of two dams and lakes having common outlet works and spillway, with the spillway in the Hammond Dam and a multiple level outlet works in the Tioga Dam. (Uncontested)
8. The Tioga Dam is being constructed on the Tioga River approximately 1.7 miles above the mouth of Mill Creek, three quarters of a mile upstream from the Borough of Tioga. (Uncontested)
9. Hammond Dam is approximately opposite Tioga Dam, on Crooked Creek about 3.3 miles upstream from the mouth of the creek. (Uncontested)
10. A channel approximately 2,700 feet in length with a bottom width of 100 feet and a bottom elevation at 1,060 feet will connect the two lakes through a saddle in a rocky portion of the ridge which separates the Tioga River and Crooked Creek basins.
11. A gated weir with a crest elevation of 1,101 feet will be provided to release alkaline water into Tioga Lake.
12. The Tioga Dam will be a rolled earth and rockfill embankment about 2,710 feet long and 140 feet high. (Uncontested)
13. The outlet works of the Tioga Dam will be located in the left abutment and will consist of a combined tower and gate structure with two hydraulically-operated service gates, a 14.5 X 21.0 foot conduit, and a spilling basin.
14. The Hammond Dam is also of rolled earth and rockfill construction and will be about 6,450 feet long and 122 feet high. (Uncontested)
15. The uncontrolled spillway with crest at elevation 1,131 feet will be located adjacent to the left abutment of the Hammond Dam.
16. A continuous flow structure will be provided through the Hammond Dam embankment to tap the Hammond pool and maintain flow in Crooked Creek. (Uncontested)
17. This continuous flow structure will consist of an intake structure with a 30-inch slide gate, a 36-inch diameter conduit and outlet works.
19. The Hammond Lake at the recreation pool elevation of 1,086.0 feet will extend 3.2 miles up the Crooked Creek Valley, have a shoreline of 8.4 miles, and an area of approximately 665 acres. (Uncontested)
20. When the dams are in operation, they will provide summer recreation pools from May 15 to Labor Day.
21. Removal of existing railroads, highways, and utilities within the project area has required the relocation and construction of approximately 10 miles of railroads, 19 miles of highways, 10 miles of power lines, 12 miles of pipelines, and 18 miles of telephone lines.
22. The project has required the relocation of 10 cemeteries containing 870 graves.
23. The Pennsylvania Department of Transportation is carrying out the relocation of U.S. Highway Route 15 required by the Tioga-Hammond Dam Project. (Uncontested)
24. Local protection for the community of Mansfield will consist of a rolled earth levee along the east bank of the Tioga River.
25. Protection against flood flows on Corey Creek near the Borough of Mansfield will be enhanced by the construction of a conduit.
26. The purposes of the project are flood control and recreation.
27. From the inception of the project to the present, numerous opportunities have been afforded the residents in the project area (Tioga County) both through public meetings and meetings with their elected and appointed representatives to express their views on the project.
28. The Corps has been accessible at its offices in Tioga and Wellsboro and members of the public have been welcome to visit and to inquire into all phases of the project plans. (Uncontested)
29. Wherever possible, correspondence from area residents and their representatives has been answered and questions dealt with. (Uncontested)
30. Applicable regulations require the preparation of a set of design memoranda on the Tioga-Hammond Dam Project. (Uncontested)
31. Pursuant to said regulations, 24 design memoranda, including a preliminary master plan and a master plan, have been submitted from November, 1965 to the present date. (Uncontested)
32. The majority of contracts on this project have already been awarded. (Uncontested)
33. The dam foundation has been excavated. (Uncontested)
34. An investigation of the soils under Tioga Hammond Dam has been done by the Corps.
35. Borrow areas have been opened. (Uncontested)
36. Highway rights-of-way have been substantially cleared and preliminary grading accomplished. (Uncontested)
37. As of December 31, 1975, project expenditures totalling $77,074,700.00 have been made towards the total project cost of $157,700,000.00. (Uncontested)
38. $24,820,000.00 worth of contracts are still unlet.
39. These expenditures represent $9,683,600.00 for Real Estate Acquisition and Administration. (Uncontested)
40. Approximately $8,889,800.00 has been spent for engineering and design. (Uncontested)
41. About $2,272,400.00 has been spent for supervision and Administration. (Uncontested)
42. Approximately $16,500.00 has been spent for Permanent Operating Equipment. (Uncontested)
43. Approximately $1,813,400.00 has been spent for completed construction contracts. (Uncontested)
44. Approximately $54,399,000.00 has been spent for ongoing construction contracts. (Uncontested)
NATIONAL ENVIRONMENTAL POLICY ACT
46. The Environmental Impact Statement for the Tioga-Hammond project (hereinafter EIS) was begun on June 15, 1970. (Uncontested)
47. Larry J. Lower, Chief, Environmental Analysis Branch, was intimately involved in its preparation. (Uncontested)
48. His qualifications at time of writing of the EIS were:
a. B.S. in Agriculture, University of Missouri, 1965.
b. Masters Degree, Landscape Architecture, University of Michigan.
c. Landscape Architect working in recreation planning.
d. Landscape Architect, Environmental Analysis Branch. (Uncontested)
49. Lower had four men working with him at that time.
50. This staff included an oceanographer, two biologists, and a civil engineer. (Uncontested)
51. This staff worked as a team to investigate, research and analyze the Tioga-Hammond project for the purpose of complying with the procedural mandate of the National Environmental Policy Act (NEPA). 42 U.S.C. §§ 4331 et seq.
52. The EIS was prepared under Council on Environmental Quality (hereinafter CEQ) guidelines dated January 28, 1971.
53. The EIS was prepared under Corps of Engineer Circulars and Engineer Regulations (hereinafter EC and ER) as follows:
a. EC 1165-2-83, 3 Mar. 1970
b. EC 1165-2-86, 30 Apr. 1970
c. EC 1120-2-56, 25 Sept. 1970 and Appendices A & B.
d. EC 1165-2-91, 30 Sept. 1970
e. ER 1165-2-500, 30 Nov. 1970. (Uncontested)
54. The U.S. Corps of Army Engineers prepared an Environmental Impact Statement required by the National Environmental Policy Act, dated April 19, 1971. (Uncontested)
55. The Copy of said Statement attached to Plaintiff's Complaint differs from the Statement filed by not having attached to it the correspondence with governmental units (summarized in the Statement) listed under "Coordination with other agencies". (Uncontested)
56. The discrepancy noted in the previous finding came about by the omission by an agent of the U.S. Corps of Army Engineers of said correspondence from the Impact Statement furnished in response to a request from Eugene Korb, representative of and member of Plaintiff unincorporated association. (Uncontested)
57. The final EIS was filed with the CEQ on June 2, 1971. (Uncontested)
58. Prior to this filing, the EIS was circulated with federal, state and local agencies. (Uncontested)
59. Their comments and appropriate responses were included in the final EIS as filed with the CEQ. (Uncontested)
60. The final EIS has been circulated to various members of the affected public. (Uncontested)
61. The EIS as filed with the CEQ consisted of 46 pages. (Uncontested)
62. The Corps has not received any negative response from the CEQ on the EIS. (Uncontested)
63. Throughout the construction of the project it has been the Corps' policy to maintain ongoing dialogue with state and local agencies and members of the general public.
64. There have been no major changes in the project since the filing of the final EIS with the CEQ.
65. The Environmental Impact Statement dated April 19, 1971, has not been amended or updated. (Uncontested)
67. Said Department has made no provision for utilities to serve residents of the area displaced from their homes but wishing to relocate on their own lands above and contiguous to the taking.
68. No separate environmental Impact Statement has been filed for the entire projected system of reservoirs to reduce flood damage within the North Branch of the Susquehanna River Basin. (Uncontested)
69. By authority of § 80(b) of the Water Resources Development Act of 1974 (P.L. 93-251) as clarified by para. 7 of EC 1105-2-204 dated September 6, 1974, the applicable interest rate of 3 1/8% for the Tioga-Hammond Lakes Project was frozen when budget justification reflecting 3 1/8% was formally presented to Congress for continuation of land acquisition in February, 1968. (Uncontested)
70. Engineering considerations are covered in the Design Memoranda. (Uncontested)
71. Studies by the Corps indicated the foundation soils to be more than sufficient to support the dam structure.
72. Many large dams have been constructed by both Federal and state agencies in glaciated areas. (Uncontested)
73. The Corps has given great consideration, both before and during project construction, to problems concerning soil erosion and sedimentation control.
74. Corps' contracts contained provisions whereby its contractors are required to implement erosion and sedimentation control plans and to secure all necessary federal, state, and ...