Conducting the Environmental Impact Analysis and Assessment - Environmental Impact Analysis: Process and Methods - page 212

In response to the U.S. Army Corps' issuance of the draft permit, EPA
again raised concern over invasive mussel infestation. In their comments
they included supporting information from Dr. Richard Neves, a profes-
sor of fisheries at Virginia Polytechnic Institute and State University, who
concluded that the dam would have a devastating effect on the downstream
ecosystem. Dr. Neves discussed the issue with five other experts, and after
consultation with these experts he concluded that the reservoir resulting
from the dam would provide a critical habitat for mussels and result in
downstream infestation. He urged the Corps to verify his conclusions by
contacting the other experts he had consulted and provided their contact
information.
The U.S. Army Corps reacted to the EPA's Draft 404 permit comments on
mussel infestations in the same manner they addressed their comments on
the intent to issue a permit. They again called a Corps employee without
documenting the employee's expertise, if any, who stated mussel infestation,
was not a concern. They did not conduct any investigation or analyses or
even contact the experts recommended by Dr. Neves.
The Hughes River Watershed Conservancy, the Sierra Club, and the West
Virginia Rivers Coalition sought the judicial review of the NRCS and U.S.
Army Corps' decisions regarding the project and issuance of the 404 permit.
The suit alleged that the NRCS and the Corps violated NEPA in a num-
ber of regards, including failure to adequately consider all the information
and prepare a supplemental EIS in light of new information. The district
court determined that NEPA and 404 regulations were properly followed
and ruled in favor of the NRCS and Corps of Engineers. The environmental
advocacy groups took exception and appealed the decision.
The essence of the appeal centered on the potential for invasive mussel infes-
tation. The Watershed Conservancy, Sierra Club, and River Coalition pointed
out that EPA, FWS, and others had raised the potential for the spread of inva-
sive mussels as a result of the dam and reservoir. As a comment on the appli-
cation for a 404 permit, the EPA explained to the U.S. Army Corps that zebra
mussel infestation would have the following adverse effects downstream of
the dam:
r Destruction of indigenous mussels (some of which are rare and
endangered)
r Clogging of water intake structures by the mussels
r Ecosystem level negative impacts on the aquatic community
The district court's decision was overruled and the finding on the appeal
was that the U.S. Army Corps failed to take a “hard look” and at mussel infes-
tation resulting from the project and thus violated NEPA. The court decision
confirmed an agency's primacy in evaluating technical data and conclusions
even when there are conflicting opinions. However, there was nothing in