Full opinion text
MEMORANDUM OF DECISION URBOM, Chief Judge. As a preface to an injunction, the plaintiffs ask for a declaration from the court that a Final Environmental Statement (hereinafter called FES) does not state carefully enough the environmental risks of the proposed Norden Dam and Reservoir on the Niobrara River near O’Neill, Nebraska. Following an analysis of a massive amount of documentary and oral evidence presented at the trial, a decision about making such a declaration can now be made. JURISDICTION OF THE COURT A federal question is presented, because the suit doubts that 42 U.S.C. § 4332(2)(C) has been complied with, and the amount in controversy exceeds $10,000.00. Jurisdiction of the court is under 28 U.S.C. § 1331(a). FACTS OF THE PROJECT APPLICABLE GENERALLY TO THE ISSUES The project, technically called the O’Neill Unit, Lower Niobrara Division of the Pick-Sloan Missouri Basin Program, consists of the proposed Norden Dam and Reservoir on the Niobrara River, the O’Neill Canal, Small Canal and Lateral Distribution Systems, the Springview Pumping Plant, Fore-bay Dam, Forebay, and other facilities. The Norden Dam axis would be located about eighteen miles northwest of Ainsworth, Nebraska. The dam is proposed as a rolled earth-fill structure rising about 180 feet above streambed with a crest length of 3,700 feet and an embankment volume of 8,200,000 cubic yards. The reservoir would inundate approximately 6,300 acres of land, extend some nineteen miles up the Niobrara River Valley, and have a shoreline of about 70 miles. The proposed O’Neill Canal, the major means of distributing irrigation water, would convey water from Niobrara Reservoir to the Niobrara Basin Irrigation District. The service area includes 8,000 acres in the vicinity of Springview, Nebraska, in Keya Paha County, and 69,000 acres near Atkinson and O’Neill, Nebraska, in Holt County. The capacity of O’Neill Canal would range from 6 to 1,400 cubic feet per second (c.f.s.). The first 28 miles would be concrete-lined and the remaining 72 miles would have compacted-earth lining. In addition to O’Neill Canal, which would be 100 miles long, some 262 miles of smaller canals and laterals would be required, ranging in capacity from 4 to 350 c.f.s. Approximately three-fourths of this would be improved to reduce seepage by means of compacted-earth lining. This project has been undergoing Congressional consideration since the mid-1950s. In June, 1953, the O’Neill Unit was included in the Niobrara River Basin development plan. On August 21, 1954, the project was authorized by Congress (P.L. 612 [68 Stat. 757], 83rd Cong. 2d Session). In this authorization Congress required a report demonstrating physical and economic feasibility, i. e., a Feasibility Report, prior to construction. On August 14,1964, P.L. 442 (88th Cong.) required reauthorization by Congress of all Missouri River Basin projects not then under construction. The Feasibility Report on the O’Neill Unit was submitted to the President on December 7, 1965, was cleared by the Bureau of the Budget without objection on May 6, 1968, and was transmitted to Congress as House Document 378 (90th Cong. 2d Session) on September 4, 1968. This report included nine appendices. The report is here as defendants’ Exhibit 2 and the appendices as defendants’ Exhibits 4, 5, 6, 7 and 8. H.R. 268 and S. 1454 to authorize the O’Neill Unit were introduced in 1970 in the 91st Congress, 1st Session. Congressional field hearings were held in O’Neill, Nebraska, on July 18, 1970, before the House Subcommittee on Irrigation and Reclamation to consider H.R. 268, but the 91st Congress adjourned without further considering either of the bills. The National Environmental Protection Act (NEPA) went into effect January 1, 1970. A Reevaluation Statement, defendants’ Exhibit 3, was prepared by the Bureau of Reclamation in April, 1971, and consisted of a supplement to the Feasibility Report, defendants’ Exhibit 2. Authorizing legislation was again introduced in the 92nd Congress, 1st Session, as H.R. 868 and S. 353. Hearings were held in Washington on March 20 and 21, 1972, before the House Interior and Insular Affairs Committee, Subcommittee on Irrigation and Reclamation, and the Senate Interior and Insular Affairs Committee, Subcommittee on Water and Power Resources. A draft Environmental Impact Statement was prepared by the Bureau of Reclamation shortly after passage of the NEPA. The draft was attached to the Department of Interior’s legislative report to Congress and transmitted to interested federal agencies, and comments were solicited. It was transmitted to the Council on Environmental Quality (CEQ) on July 12, 1971. Although no objection to the adequacy of the draft was made by members of the House or Senate subcommittees, the Bureau of Reclamation decided to revise the Environmental Impact Statement. This revision became the Final Environmental Statement (FES), which is defendants’ Exhibit 1, and was filed with the CEQ on September 22, 1972. The project was authorized by Congress in the Reclamation Project Authorization Act of 1972 (P.L. 514, 92nd Cong.) on October 20,. 1972. The Public Works Appropriations Act of FY 1974 (P.L. 97, 93rd Cong.) appropriated $200,000.00 to begin the advance planning studies on the O’Neill Unit. The Public Works Appropriations Act of FY 1975 (P.L. 393, 93rd Cong.) appropriated an additional $550,000.00 to continue the advance planning studies, and the Public Works for Water and Power Development and Energy Research Appropriations Act of FY 1976 (P.L. 94-130, 94th Cong.) appropriated $1,095,000.00 to start construction of the O’Neill Unit. Prior to FY 1974, when advanced planning studies began, Congress had appropriated $1,046,978.00 to finance Bureau of Reclamation studies of the O’Neill Unit. The project is now in the infancy stage of construction. Additional facts will be cited as necessary to resolve specific issues. IDENTITY OF FINAL ENVIRONMENTAL STATEMENT Because the claim is that the FES is inadequate and because environmental factors are discussed in several different documents in evidence, the issue arises as to what document or documents are to be considered in determining the sufficiency of the FES. I conclude that for purposes of this case sufficiency must be decided on the basis of that document labeled “Final Environmental Statement,” which is defendants’ Exhibit 1. The defendants urge that the Feasibility Report, the Reevaluation Statement, and the nine appendices to the Feasibility Report, be considered as part of the FES, as well as any work which is cited in any footnote or in the bibliography of the FES. The NEPA states: “The Congress . . . directs that, to the fullest extent possible: ... (2) all agencies of the Federal Government shall— ****** (C) include in every recommendation or report ... a detailed statement . . . on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. “Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public ., and shall accompany the proposal through the existing agency review processes . . . ” 42 U.S.C. § 4332 The purposes of the “detailed statement” are at least these: 1. To ensure that agency officials will be acquainted with the trade-offs which will have to be made if any particular line of action is chosen; 2. To explicate fully the agency’s course of inquiry, analysis, and reasoning, thus opening up the agency’s decision-making process to critical evaluation by those outside the agency, including the public; 3. To supply a convenient record for courts to use in reviewing agency decisions on the merits; and 4. To provide full disclosure to the public of environmental issues. Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346 (C.A. 8th Cir. 1972); Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292 (C.A. 8th Cir. 1976). It is the essence of the NEPA that the detailed statement “gather in one place” a discussion of the relative environmental impacts of alternatives. Environmental Defense Fund, Inc. v. Froehlke, supra, at 350. The defendants cite three cases in support of their position that all supporting documents — those referenced in the body of the statement or listed in the bibliography, as well as the Feasibility Report, the Reevaluation Statement, and the appendices of the Feasibility Report — are part of the statement mandated by the Act: Life of the Land v. Brinegar, 485 F.2d 460 (C.A. 9th Cir. 1973); Trout Unlimited v. Morton, 509 F.2d 1276 (C.A. 9th Cir. 1974); and Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army (Gillham), 342 F.Supp. 1211, 1217-1218 (U.S.D.C. E.D. Ark.1972). Life of the Land v. Brinegar, supra, does hold that failure to attach the text of all the references used in the statement’s preparation does not render the statement deficient, where they remained available upon request. No claim is here made that the texts of all supporting documents should have been attached to the FES; the claim simply is that the FES does not adequately state the environmental facts. The case of Life of the Land v. Brinegar, therefore, is inapposite. Trout Unlimited v. Morton, supra, similarly holds that supporting studies need not be physically attached, but must be accessible. The opinion further declares that the FES itself must not be conclusionary in nature and the public must be informed of the impacts by the statement itself. This is consistent with the holding which I now make. The third case, Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army (Gillham), supra, does not support the defendants’ position. The case indicates only that the appendices of the FES were a part of the FES. Those appendices were not the equivalent of the separate Feasibility Report or the appendices to the Feasibility Report, but were the equivalent of the appendices of the FES in the present case, which appendices are physically a part of the FES and consist of a reservoir operations graph, excerpts from the Nebraska Water Quality Standards, a list of resident mammals, a list of resident and migratory birds, and a letter from the Nebraska State Historical Society. I agree that those items, as well as the comments from various federal agencies, the State of Nebraska, Nebraska counties, Nebraska cities, conservation entities, and newspapers should be considered to be a part of the FES. They have been physically integrated during the entire decision-making process. The critical document, therefore, is the FES itself, including the comments that are physically a part of it. To hold that the Feasibility Report and its appendices and the Reevaluation Statement are a part of the FES would be to miss the point of Congress’ requiring “a” detailed statement. Perhaps the most meaningful test is what a lay person, an interested member of the general public, needs and reasonably can expect to have in making an informed evaluation of the environmental risks. Scattered documents, not even specifically cited in a single document for support of a particular environmental fact, do not meet that test. If a conclusion is stated in the FES and the reader is then directed to another document for data supporting the conclusion, the document to that extent should be considered to be a part of the FES, if it is accessible to all, including the public. LEGAL STANDARD An FES is to be judged by a legal standard which seeks to be a guide to interpreting the NEPA requirement that the statement be “detailed.” Sierra Club v. Froehlke, 534 F.2d 1289, 1299-1300 (C.A. 8th Cir. 1976), puts it this way: “ ‘. . . The discussion of environmental effects need not be “exhaustive” but rather need only provide sufficient information for a “reasoned choice of alternatives.” Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). . . . Section 102(2) does not require that “each problem be documented from every angle to explore its every potential for good or ill.’ ” “. . . The courts must employ a rule of reason in the examination for adequacy of these statements, lest the litigation have no end. . “ ‘. . . The effectiveness of Section 102(2) [42 U.S.C. § 4332(2)] depends upon compliance with procedural duties “to the fullest extent possible,” i. e., a compliance, the completeness of which is only limited by the agency’s statutory obligations. While no agency may properly adopt a less demanding standard for their effort, judicial review is based on a pragmatic standard. In determining whether an agency has complied ■ with Section 102(2), we are governed by the rule of reason . . . ’ "Sierra Club v. Morton, 510. F.2d 813, 818-819 (5th Cir. 1975).” SEDIMENT ACCUMULATIONS ABOVE THE RESERVOIR AND BELOW THE DAM Sedimentation is discussed in the FES as it relates to accumulations in the reservoir above the dam, but the plaintiffs complain that there has been a lack of or inadequate discussion of accumulation of sediment above the reservoir and below the dam. The plaintiffs’ position is that accumulation of sediment in the reservoir will raise the water level in the reservoir, which in turn will lessen the capacity of the river upstream to carry sediment, resulting in increased sediment accumulations far upstream from the reservoir and at the mouths of tributaries leading into the river. Although there was testimony to support this position, I am persuaded that the factor of sediment accumulations above the reservoir is not significant and that a lack of discussion of it in the FES was warranted. No reasonable likelihood of upstream sediment accumulation has been shown by a preponderance of the evidence. The probability is that ho substantial impact upon upstream deposits above the water level of the reservoir will occur, because of the narrowness of the channel and swiftness of the water. As stated in Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (C.A. 9th Cir. 1974), a reasonably thorough discussion of “the significant aspects of the probable environmental consequences” is all that is required. Essentially the same is true as to sedimentation below the dam. Although a diminished flow of water decreases the capacity of the water to carry sediment, the amount of water anticipated to be released from the dam would probably be sufficient to make any sediment accumulation nominal. The FES says enough at C-7, paragraph 29: “Operation of the project will reduce downstream flows of the Niobrara River about 38 percent below historic average annual flows at Norden Damsite and 10 percent at the river mouth. The reduced flows will have some physical and biological impacts on the stream ecosystem . . . “. . . With the project development, the flows immediately below Norden Dam would be 200 c.f.s. or greater, half of the time, which is greater than the recorded minimum flows. * * * * * * “. . . [Rjeduced flow will reduce the capability to carry sediment and silt, less scouring of sand islands in the braided portions will occur because of reduced occurrences of flood flows, and some areas will have stream bottomland exposed. . The establishment of new riparian vegetation and the change in the stream’s pattern of cutting and depositing suspended material could change the existing meander patterns.” APPLICATION OF HIGH HYDROSTATIC PRESSURE TO THE GEOLOGICAL FORMATIONS AT THE DAMSITE To the extent that the plaintiffs’ evidence is within the scope of the issue as limited in the pretrial order, two points are emphasized: (1) pressure of water in the reservoir against the Valentine formation is likely to cause landslides into the reservoir, and (2) pressure from the weight of the dam and weight and intrusion of water into the Pierre shale under the dam may result in an unstable foundation for the dam. The Valentine formation is the formation nearest the top of the sides of the reservoir and consists of fine and medium sands. Dr. Wilbur F. Rogers, Professor of Civil Engineering at the University of Nebraska, testified at the request of the plaintiffs that he has observed evidence of land movement within a mile above the dám and predicts that substantial slides into the reservoir will occur when it has been filled with water. None of the defendants’ experts have seen what Dr. Rogers interprets as signs of instability in the reservoir area, but are inclined to dismiss the significance of whatever they are. As to the ability of the formations at the damsite itself to hold a several-million-ton dam, both Dr. Rogers and the defendants’ experts agree that further studies are necessary to have assurance of a stable foundation. Some studies are underway now. Load studies have not been done, but will be. No problems are expected by either the state geologist, Vincent Dreeszen; the Bureau of Reclamation geologist, Lynn A. Johnson; or the supervising engineer, Edward W. Gray, Jr. But the fact remains that there is evidence of instability within a few miles downstream from the dam and perhaps a lesser distance upstream, and all agree that further studies need to be done. That need is not mentioned in the FES. I conclude that it should be. The FES is silent on the subject of geological instability, other than stating at B-3, the second paragraph, that “no known faults exist in this area. Seismic activity is almost unknown.” As to the possibility of landslides into the reservoir, I think that the evidence is insufficient to meet the plaintiffs’ burden of proof that the FES is inadequate. I do not mean that there is no danger of landslides; I mean only that the FES needs to be judged on the basis of knowledge reasonably available at the time of its preparation. The defendants’ geologist made careful studies at the site and observed no evidence of landslides or other instability that would suggest a genuine risk from hydrostatic pressure against the Valentine formation, which is the issue before me. Although all interested agencies had an opportunity to comment on the draft environmental statement, no one suggested that kind of instability. It was only at the trial that this problem was brought to the attention of the Bureau of Reclamation, whose responsibility the construction is. On the other hand, the question of the safety of the damsite does not fall heir to the same facts. Uncertainty of the strength of the underlying rock and soil foundation to support the dam, given the instability known to be nearby and the hydrostatic pressures necessarily involved from the reservoir, has been present in the minds of the experts of the Bureau of Reclamation from the outset of the project. The Bureau abandoned two sites for the dam because of geologic instability before selecting the present one. It agrees that it still has not eliminated the uncertainty but now is conducting and in the future will conduct tests to do so. All this intimates a risk of danger to the environment and deserves to be taken into account. by a decisionmaker in deciding whether to proceed with the dam. It therefore needs to be explicated in the FES. I do not hold that the uncertainty must be eliminated before construction can go forward. I hold only that the uncertainty — its nature and basis and what is needed to remove it — must be expressed in the FES so that a decisionmaker may weigh it on the scales. Otherwise, the FES will not be providing a “reasoned choice of alternatives” within the “rule of reason.” WATER QUALITY The plaintiffs assert that the FES is insufficient in that it fails to provide enough information about the project’s impact on the groundwater quality and misrepresents technical papers directed to nitrate pollution issues. There can be no doubt that increased farm irrigation and livestock, production generally tend to increase the pollution of groundwater. The project is expected by the defendants to increase the production of livestock and the use of irrigation. What effect would these increases have on the quality of the groundwater in the area? In order to describe the anticipated impact of the project, the FES must describe the quality of the water as it is before the construction. It does this at C-3, paragraph 11, as follows: “An analysis of water quality in the Niobrara River Basin indicates a range in total dissolved solids (TDS) of 172 milligrams per liter (mg/1) to 208 mg/1 and an average of 190 mg/1.” Similarly, at B-4 the FES says: “. . . The present quality of surface water in the Niobrara River at Norden Damsite is good. The total dissolved solids average about 190 ppm with a range of 170 to 210 ppm. Surface water in the project service area has slightly less TDS. Under Nebraska’s water quality standards, this reach of the river is classified ‘A, C.’ Excerpts from the Water Quality Standards describing these classifications are appended. “. . . Reports of high-nitrate water from several wells in northern Holt County [one of the counties in the project area] prompted the U. S. Geological Survey to look into the problem. . [W]ater samples were obtained from 71 wells during the period 1963 through 1966 Sampling was . . . concentrated on known problem areas. Twenty-two of the wells sampled contained more than 45' ppm nitrate, the recommended upper limit for domestic water supply. Nitrate in all samples ranged from 0.1 to 409 ppm. A report on the survey ... in Holt County was published by the Conservation and Survey Division of the University of Nebraska.” Citation of the report is given at that point in the FES as a footnote, and the report is quoted: “When the nitrate concentrations are plotted on a map, it is apparent that the high and low values are randomly distributed. “A likely source of contamination could be identified for nearly all the stock and domestic wells yielding high-nitrate water. Not surprisingly, barnyards and feedlots were the principal offenders, as several of the high-nitrate samples were from wells near or within such tracts. Buried sources, such as septic tanks and sewage outlets, were suspected for those not having obvious sources. “. . . [Although a relation between the use of nitrate fertilizers and high nitrate concentrations in ground water has not been established, it seems likely that one may exist.” Contrary to the position of the plaintiffs, the FES does not misrepresent the quoted study, known as the Engberg report. The FES does not picture the report as applying generally to Nebraska, but specifically identifies it as relating to Holt County. Neither is there a misrepresentation of another study, this one by Seim, Mosher and Olson, quoted at B-5. That study does relate to Nebraska generally, not to the project area specifically, and no careful reader of the FES would be led to think otherwise. The conclusion at B-6 of the FES is that “. . .a nitrate problem exists in many areas in Nebraska . . . The problem will require additional monitoring, study, and research in the O’Neill area.” That conclusion is accurate and supported by the cited studies. As to the effect the project will have on water quality, the FES says little. At C-3 is this: “There will be an increased use of herbicides, pesticides, and fertilizers on private lands served by Reclamation projects. However, Reclamation does encourage sound farming and irrigation practices related to the use of these items. According to the Federal Water Pollution Control Administration letter of February 20,1970, appended to the 1971 reevaluation statement for the O’Neill Unit, the increase in salinity in the Niobrara River is not expected to exceed the criteria specified by the Water Quality Standards. The referenced letter does so indicate, but the letter at that point was discussing the salinity in the Niobrara River, not increased TDS in the groundwater. The letter acknowledges that “livestock production has grown to be a very significant agricultural activity in the study area and is expected to increase with the availability of feed from irrigated land.” The letter states that cattle feeding results in the production of substantial amounts of wastes and concludes that “confined cattle feeding operations can be adequately controlled by the State to minimize the effects of this potentially large waste load.” The only other statement in the FES about the effect of the project on the groundwater is on page 3 of a response by the Bureau of Reclamation to comments of March 15, 1972, submitted by the Environmental Protection Agency to the draft environmental impact statement (in Comments from Federal Agencies in the FES): “The potential for introduction of pesticides and fertilizer chemicals into the ground water and streams of the O’Neill area is recognized. Because of lack of basic research and documentation of this hazard in this or other areas it would be premature at this time to predict such an occurrence. Studies now in progress such as investigation of nitrate movement in soils and into the ground water by the University of Nebraska may shed additional light on this hazard prior to construction of the project.” From the totality of the" evidence, I conclude that the description of the expected impact of the project on the groundwater quality is inadequate. The conclusion that the impact will be minimal was not based on scientific studies and, indeed, appears to have been based on a lack of them. The Bureau’s responsibility was to discuss fully all significant environmental impacts, and it could not justifiably conclude that an impact would not be significant merely because the Bureau lacked information about the subject. Making studies would not have been of inordinate difficulty, so a duty devolved upon the Bureau to make them. Compare United Family Farmers, Inc. v. Kleppe, 418 F.Supp. 591, 599 (U.S.D.C. S.D. 1976). On the other hand, the discussion of the impact on the water quality below the proposed dam — that is, the impact on stream water — is adequate. At C-3 the FES says: “. . . According to Federal Water Pollution Control Administration letter of February 20, 1971, appended to the 1971 reevaluation statement for the O’Neill Unit, the increase in salinity in the Niobrara River is not expected to exceed the criteria specified by the Water Quality Standards. An analysis of water quality in the Niobrara River Basin indicates a range in total dissolved solids (TDS) of 172 milligrams per liter (mg/1) to 208 mg/1 and an average of 190 mg/1. Consumptive use of the applied water will concentrate the salts and result in return flows that average about 320 mg/1. Reservoir bypasses and seepage that returns to the river and sectional inflow will provide sufficient riverflow to moderate the effect of the slightly more saline irrigation return flows. Since irrigation return flows would constitute only about 10 percent of the total depleted runoff in this section of the Niobrara River, the increase of TDS in the residual flows would be small.” The evidence supports this description and it was enough upon which to base a reasonable conclusion. OUTMIGRATION An attack is made on the FES on the theory that the FES represents that the project would abate or tend to reduce out-migration without factual basis for the representation. The defendants state the issue in terms of whether there has been a misrepresentation, but either way the plaintiffs do not prevail. Outmigration appears as a subject in the FES in the following ways: 1. In Chapter A, “Description of the Proposal,” page A-7, the FES says: “. . . In this area, the population declined from 39,363 in 1940 to 33,606 in 1950, 30,602 in 1960, and 27,371 in 1970. . . Outward migration has hindered local businesses. . . . ” 2. In Chapter B, “Description of the Environment,” page B-13, paragraph g(2), “Economic Development,” the FES states: “. . . [R]ural population is decreasing because of increased farm size required to maintain a viable family farm enterprise . . . Population in the five-county area . . . decreased over 18 percent between 1950 and 1970. 3. On the next page, B-14, paragraph g(3), “Cultural and population centers,” the FES says: “. . .In spite of the overall population loss in the O’Neill Unit area, three of [the] towns, Atkinson, Ainsworth, and O’Neill gained population during the period 1960 to 1970. All are in areas with expanding irrigation development.” 4. In the same chapter, under the heading, “Probable future environment with project,” pagé B-15, paragraph 2, is this statement: “Economic pressures on primary and secondary agriculture production in the project service area will continue [in the absence of the proposed project] to augment the trends of consolidating small farms into larger units and force an outward migration of rural residents to large urban centers . . . The population would continue to decline. Business . will continue to decline because of the . outmigrating population.” 5. In Chapter H, headed “Alternatives to the Proposed Action,” paragraph 1, appears the statement that “The no-development alternative would result in a project area . . . progressively degrading in . outmigration of the population,” and spin-off effects would include “(1) consolidation of farm lands into larger units, . ” and “(5) an outward migration of rural people to urban areas will continue.” 6. In a letter from the Sierra ClubBluestem Group of March 13,1972 (appearing in the FES in the section labeled “Comments from conservation entities,”) this statement to the Bureau of Reclamation was made at page 2, paragraph A2: “It is highly unlikely that the O’Neill Unit and its local economic input will significantly affect the rate of rural out-migration from the project area. Similar reclamation projects cannot be shown to have done so elsewhere in Nebraska. It is neither clear that out-migration from rural areas is necessarily bad nor that such out-migration should serve as a need by which to justify developments such as the O’Neill Unit.” The Bureau’s response, at IIA, paragraph 2, was: “In discussion of the effect of the proposed project on population changes, the entire local area, including adjacent towns, is considered as the project area. Outmigration from such an area results mainly from the absence of sufficient economic activity to sustain the existing population at a level reasonably comparable to other areas. Some may question that irrigation development will stop the present trend to larger farms and consequently the reduction in numbers of people oh the farms. Water resources development does improve greatly, the potential for maintaining a viable farm enterprise without increasing the farm size. Further, the increased production and the resulting economic impact on the rest of the local community provide business growth and expansion to support absorption of excess population from the farms, particularly from those areas still without irrigation service.” 7. Within a letter from the Quality Environmental Council of March 13, 1972 (in the FES in the section labeled, “Comments from Conservation Entities”), is this comment at paragraph 25: “. . . The basic reason why population in this region has declined somewhat is because of an increasing ability through technological advances for fewer people to farm or ranch more acres. Transportation is faster and agricultural machinery is more efficient. Thus, one farm family can farm 300-600 acres today whereas in 1940, few farmers utilized more than 200 acres. Ranchers can handle more acreage because of better transportation. “By simply providing another source of water, the population is not going to increase. As we will discuss more thoroughly later in this document, perhaps as many as one-fourth of the farmers in the reclamation district have already provided their own source of water through central-pivot irrigation. The benefits to the economy will be for those who make pipe for irrigation. However, industries are already manufacturing central-pivot irrigation systems. Others to benefit will be the large farm equipment manufacturers with their base of operations outside of Nebraska. Instead of drawing human population back to the O’Neill region of Nebraska, it will be more likely to draw some of the young people to the industries outside of Nebraska.” The Bureau’s response was: “Population figures quoted in the impact statement are for the five-county area encompassing the O’Neill Unit, Holt, Keya Paha, Cherry, Brown and Rock Counties. “Because ground-water supplies are inadequate to support anything approaching full irrigation, another source of water is necessary to maintain • and enhance the farm and agriculturally-associated economy of the area. This is mandatory if this area is to maintain a stable population in the rural area. “Certainly, as is pointed out in these comments and in the environmental statement, a large part of the economic impact of the production from irrigation occurs in agriculturally-related business. According to the findings of the University of Nebraska, 60 percent of the irrigation-related business activity occurs in Nebraska and contributes to personal income so necessary to maintenance of a stable or growing population.” At the trial the plaintiffs’ expert, Bruce Johnson, agreed that rapid increase of irrigation in the area already has decreased the trend toward outmigration and he doubted that the project would have a significant impact on the trend. This is basically the position asserted by the Sierra Club Blue-stem Group in its letter. The various positions on the subject of outmigration, then, were fairly set out in the FES, which includes the comments of the conservation entities and the Bureau of Reclamation responses. Trial testimony gave credence to the several opposing positions and each position is reasonable. Under those circumstances, a clear set of alternatives was afforded to the decisionmakers, and that met the primary purpose of the environmental statement. There was a factual basis for an implied suggestion — no express representation is made in the FES — that the project would tend to reduce rural outmigration. The Bureau recognized that opposing viewpoints exist, but one permissible viewpoint was, and is, that increased availability of irrigation water would increase irrigation, which would increase the capability of a farm unit, whether small or large, to supply more people than otherwise (not necessarily people residing on the farms but residing in the five-county area, both in towns and on farms) and thus retard the migration from the five-county area, which migration is in part economically based. The fact that opposing arguments can be made does not obliterate that permissible viewpoint. ECONOMY OF THE REGION The issue here is whether the FES misrepresents or omits significant facts in describing the economy of the area to be served by the proposed project. Two major points are underlined by the plaintiffs: The use of “underemployment” as an economic indicator, while omitting other indicators, and reliance upon a report by Theodore R. Roesler', F. Charles Lamphear and M. David Beveridge titled, “The Economic Impact of Irrigated Agriculture on the Economy of Nebraska,” appearing in Nebraska Economic and Business Report, No. 4, September 1968, published by the Bureau of Business Research, University of Nebraska, footnoted in the FES at C-2. At B-13 the FES recites that the project area is dependent upon agriculture and has a declining population. The FES then continues: “ . . . [T]he overall economy of the area has lagged . . . According to a study by the Department of Agriculture," the median income for the five-county area in which the facilities for the unit would be located was 60 percent of the national median income for 1960. Stated otherwise, the measure of underemployment in the O’Neill Unit area was 40 percent greater than the national average.” “Underemployment” is used again at A-7: “Economic underemployment of the civilian labor force averages 40 percent for the five-county area encompassing the O’Neill Unit. Evidence of the severity of this underemployment is demonstrated by a 10 percent loss in population between 1960 and 1970. In this area, the population declined from 39,363 in 1940 to 33,-606 in 1950, 30,602 in 1960, and 27,371 in 1970. Communities in the O’Neill area are dependent on the economic and social base supplied by agricultural production within the immediate vicinity. Outward migration has hindered local businesses. Consequently, the O’Neill area has a lagging economy with severe underemployment.” From the quotation at B-13 it is evident that “underemployment” as used in the FES means a condition wherein the median income of a specified area, the five-county area, is less than the national median income. Although this is not the definition with which the plaintiffs’ expert, Bruce Johnson, was familiar, it is not a definition foreign to the United States government economists. The Economic Development Act of 1965, 42 U.S.C. § 3121 ff., uses the term to apply to areas which have a median family income not in excess of 50 per cent of the national median, and directs that data regarding underemployment shall be used in determining whether to make grants and loans to specific regions. Indeed, as a part of the Congressional findings and statement of purpose, Congress declared that “substantial and persistent unemployment and underemployment cause hardship to many individuals and their families, and waste invaluable human resources; to overcome this problem the Federal Government, in cooperation with the States, should help areas and regions of substantial and persistent unemployment and underemployment to take effective steps in planning and financing their public works and economic development ...” Furthermore, a publication of the United States Department of Agriculture, “Underemployment Estimates by County, United States, 1960,” plaintiffs’ Exhibits 13 and 13A, described a concept similar to that used in the FES. It compared “the reported county median income with an imputed county median income which reflected the earning capacity of the county labor force if county incomes were the same as for the national labor force with similar earning characteristics ... If the reported earnings were lower than the adjusted norm, the county labor force was considered underemployed.” Use of the concept in the FES cannot be considered to be improper. The FES was clear enough as to the definition of the term as it was being used. The plaintiffs argue, further, that even if use of “underemployment” was not misleading, other economic indicators should have been included, such as per capita income, unemployment, and farm assets. From the evidence I conclude that inclusion of these economic indicators would be proper, but that their omission is not improper. The plaintiffs have not carried their burden of showing that the FES is inadequate in describing the economy of the region in terms which omit per capita income, unemployment, and farm assets. In putting together the FES the Bureau relied on a study by three economists, Roesler, Lamphear and Beveridge. Accurately, the FES states at C-2 that the study “indicates that $6.68 of economic activity occurs within the State of Nebraska for each dollar of increased value attributable to irrigated crop production.” The FES then applies that formula to the O’Neill Unit and concludes that the irrigation development would result in increased economic activity of $67.5 million annually within the State of Nebraska. The plaintiffs attack the validity of that study. It will suffice to say that the Bureau of Reclamation economist, Samuel James Kennedy, testified in support of the Roesler, Lamphear and Beveridge study, as did Dr. Leslie Floyd Sheffield, an agricultural economist. Taking the evidence as a whole, I conclude that the plaintiffs have not carried their burden of proving that reliance on the cited study was improper. ECONOMIC BENEFITS AND COSTS The precise issue framed in the pretrial order at paragraph 14 is: “Whether the defendants were required to provide information regarding the economic benefits and costs of the proposed project.” The National Environmental Protection Act’s language does not require economic benefits and costs to be included in an environmental statement. No case has been found to say that it does. I can think of no reason for requiring it. The answer to the question within the issue is in the negative. AGRICULTURAL LOSS This issue is directly related to the immediately preceding issue, inasmuch as it has to do with economic benefits and costs. Broadly stated, the question is whether the FES fails to set forth adequately the amount of agricultural production lost and destroyed by the project, including the cost of interference with farming and ranching operations. The question does have environmental implications, and I therefore shall deal with it. To the extent that the issue is one of economic benefits and costs, the FES is susceptible to the criticism that it unnecessarily deals with such matters. I have already pointed out that economic costs and benefits are not required to be in an environmental statement. The trouble is that the makers of the FES did not take that view. Indeed, a commenting letter from the United States Environmental Protection Agency, dated March 15,1972, (appearing in FES at “Comments from Federal Agencies”) questioned the propriety of emphasizing the economic and social benefits in an environmental impact statement, but the opinative response of the Bureau was that “full consideration of the economic and social environmental impacts is completely warranted.” The reasons given were that all factors have to be considered by the federal government in assessing a project. So, of course, all factors should be considered, but that is not to say that they should be all detailed in the FES. The plaintiffs then rightly assert that if economic factors are delineated in an FES, they should be fully and objectively described. Economic factors were developed in much detail for Congress in the Feasibility Report, defendants’ Exhibit 2, and the Reevaluation Statement, defendants’ Exhibit 3. They belong there. It would have been entirely consistent with the NEPA for the FES to have made the statement that economic benefits and costs are set out in detail in the Feasibility Report and the Reevaluation Statement and let it go at that. Having gone into the economic subjects somewhat in the FES, the question then is whether the subject was so lopsidedly treated as to be misleading. I have tried to assess each of the many points raised by the plaintiffs in this regard, but I shall not detail them here. I conclude that the FES is not inadequate or misleading with respect to agricultural losses from an economic standpoint. This is true in part because all the arguments, I believe, and most of the evidentiary points urged by the plaintiffs, are set out in more or less detail in the FES. They are contained either in “Comments from Federal Agencies,” “Comments from Conservation Entities,” or the responses of the Bureau to those comments. See, for example, the Sierra Club-Bluestem Group’s letter of March 13, 1972, to the effect that there already is an overproduction of corn; the letter of the Sierra Club-Pine Ridge Group of March 13, 1972, doubting that the irrigable land is “high quality” and questioning the cost-benefit ratio, and which raises the criticism that the FES excludes project-induced farm investment costs, includes unemployment benefits, excludes family-labor and management costs and the relationship between crop yields, costs and prices; and the letter of the Quality Environment Council, saying that the cost of the project would be $1,486.00 per acre for the 70,000 acres not now being irrigated, whereas irrigation with central-pivot systems is $150.00 to $250.00 an acre, declaring that the project would take out of production 30,350 acres of crop and grazing lands, and attacking the cost-benefit ratio. All these are part of the FES and it cannot be said, therefore, that they were not taken into account by the decisionmakers. Additionally, the FES, aside from comments from other agencies and groups, points out agricultural losses in a fair sense, although not in substantial detail. It says at page ii, paragraph 3 — C: “The reservoir . . . will regularly inundate nearly 6,300 acres of land . . . , and . . . displace six farm families On the same page at paragraph 3-D, it says: “Construction will cause temporary scarring, destruction, and alteration of the existing landscape . . . ” At .C-8, paragraph 31, the FES notes that construction of the canal, laterals and drains would remove land from agricultural production and be disruptive to present farming operations. The amount of land is not there specified, but in the Bureau’s response to a comment of the Quality Environment Council (with its letter of March 13, 1972, at paragraph 47) the Bureau agrees that the project would take out of production 30,350 acres of crop and grazing land for right of way. The FES at C-9, paragraph 33, says that the transmission line for the substation near Ainsworth would be constructed through grazing land and some crop land, requiring a minimum easement of 25 feet. It says that structures would be near fence lines to minimize interference with farming but that there would be some inconvenience. All in all, I cannot say that the agricultural loss, viewed from an environmental posture, is inadequately or inaccurately stated in the FES. A contrariety of views is set out in the comments of the agencies and those views were before the decision-makers. RECREATIONAL ATTRIBUTES The issue as stated in the pretrial order is: Whether the recreational attributes were properly represented in the [FES] as a project benefit. The FES at page ii, paragraph 2, states: “The project will . . . increase water-oriented recreation opportunities Paragraph 3A on the same page says: “The proposed project will provide . . . water recreation opportunities . . . ” Page A-4 recites planned recreational facilities and a table of them appears at A-5. One of the purposes of the project is stated at A-6, paragraph 2, as “providing water-oriented recreation opportunities ...” Page B-15 says that, if no project were to be developed, there would be a lost opportunity “for recreation.” At H — 1 a statement is made that if the project were not developed, there would be left an unsatisfied need for “diversified water-oriented recreation opportunities.” Thus, there can be no doubt that the basic FES pictures the project as enhancing recreational opportunities. The plaintiffs press several points: That the project would damage canoeing opportunities, that the projection in the FES that 300,000 visitor days annually by the 15th year of operation (C-3, paragraph 10) is factually unsupported, that the FES should acknowledge that the Norden reservoir would be located about 300 miles from the major urban centers of Nebraska, and that there really is no need for recreational facilities in the area where the project is proposed to be located. As to canoeing loss, it is clear that the unobstructed length of river for canoeing would be reduced. About 46 miles would remain available, 12 miles of which would be downstream of the completed project. But the FES acknowledges that this is true. At B — 10 it describes the present canoeing usage, as follows: “ . . . Canoers normally enter the river at Valentine and canoe through the Fort Niobrara National Wildlife Refuge to the vicinity of Smith Falls above the upper reaches of the proposed Norden Reservoir. Some canoeing is done below this point with the stream being suitable, at least part of the time, for this purpose for about 11 miles into the proposed reservoir site, except for occasional rocky ledges which sometimes damage canoes. Below this point, the river becomes more braided, making it less suitable for canoeing purposes. Although recently much publicity has been sought by certain groups for this activity, it still represents a relatively few visitor-days of use.” The FES states directly that 19 miles of the Niobrara River (page ii, paragraph 3-C) would be inundated for reservoir purposes. From that it is obvious that the reservoir would not be available for canoeing in moving water. The projection of 300,000 visitor days to the site is not without support. It is true that the source of the information is not pointed out in the FES, but it need not be. The testimony of Kenneth R. Krabbenhoft and the Reevaluation Statement, defendants’ Exhibit 3, in the last section thereof, provide the data from which an estimate reasonably could be made of the projected 300,000 figure. Even though the Reevaluation Statement is not a part of the FES, it and therefore the supporting data for the FES’s statement were accessible to the decisionmakers, the commenting agencies, and the public upon request. The plaintiffs have not shown that the projection is factually unsupported. The fact that the reservoir would be some 300 miles from the large population areas of Nebraska is pointed out in the FES in a letter from the Sierra Club-Bluestem Group of March 13, 1972, page 2, paragraph B-2. Similarly, the claim that there is no need for additional recreational facilities in north central Nebraska is made in that same letter from the Sierra Club-Bluestem Group, as well as the Sierra Club-Pine Ridge Group’s letter of March 13, 1972, and the comments with the letter from the Quality Environment Council of March 13, 1972, at paragraph 32. It was not unreasonable for the FES to represent recreational attributes as a project benefit, although arguments to the contrary could be, and were, made in the comments to the draft environmental statement, which are a part of the FES. WILDLIFE The FES envisions the project as a source of enhancement of wildlife. It says at page ii, paragraph 2, that “The project will . . . promote fish and wildlife conservation . . . and at A-6, paragraph 2, that the project will provide “wildlife protection and management facilities At C-4, paragraph 15, it says: “The 28-mile concrete-lined section of the proposed O’Neill Canal will be a hazard to wildlife, especially deer.” At D-2, paragraph 1, it is said that measures to reduce hazards to deer and other wildlife as a result of the concrete lining of the canal “would be studied . . . ” It says that the Bureau is experimenting and studying techniques for providing safe crossing and means of escape from the canal and that fencing would be provided as recommended by federal and state game management agencies. Two cardinal points predominate in the plaintiffs’ position. One is that the FES does not confront successfully the fact that it cannot assure a solution to the problem of deer falling into the canal. The other is that the FES is wanting in facts about the amount of wildlife that would be lost and displaced by the dam and reservoir. With respect to deer in the canal, the difficulty of solution is admitted in the FES. It says that the canal will be a hazard to deer, that techniques are being experimented with by the Bureau for providing safe crossings, and that fencing will be furnished. In a response by the Bureau to a comment from the Nebraska Game and Parks Commission in its letter of September 10, 1971 (in the FES at “Comments from State of Nebraska”), the Bureau said: “The hazard of conrete-lined [sic] canals to deer that get in the canals is well known. Possible solutions are fencing the canals, providing steps on the sides, and uneven or rough concrete sides. Pri- or to construction, the Bureau of Sport Fisheries and Wildlife has offered to consult with us in designing an effective device to reduce or eliminate this possible hazard to deer.” These statements acknowledge the persistence of the problem and offer mitigating choices. The FES is not defective in that respect. ¡ The coverage of the project’s impact on wildlife in the inundated area is quite another matter. Aside from a claim that the project will provide wildlife protection and conservation, almost nothing is said about the wildlife to be affected by the dam and reservoir, except the following statement at E-l: “Nearly 6,300 acres of terrestrial and some avifauna wildlife habitat will be inundated. The wildlife occupants of the reservoir will be displaced. Depending on available substitute habitat, some species may decrease in number. The magnitude of loss cannot be determined because of the lack of wildlife population data and an adequate inventory of the quantity and quality of available wildlife habitat. Furthermore, by the time construction would begin, the present conditions could substantially change.” Although the plaintiffs’ brief dubs this paragraph Orwellian Newspeak, I view it in less opprobrious terms. The paragraph does not strike me as being sinister or callous, but neither is it very informative. It says that about 6,300 acres of land will be under water, that the animals and birds who live there will have to go someplace else,- and that how many live there now, what kinds live there now, and how many can survive someplace else is not known. Nobody denies that the impact of this project on wildlife would be consequential. Does saying that the amount of the impact is not known constitute “to the fullest extent possible” “a detailed statement . . . on any adverse environmental effect,” as mandated by NEPA? It does not, at least where, as here, a reliable estimation of the effect on wildlife could have been developed by ordinary measures. From the testimony it is clear that a census of the various species of wildlife and data of the habitat in the affected area are needed and can be acquired fairly readily., A correlation of the pre-construction wildlife population with the present habitat needs to be made. An analysis of the present habitat and the proposed post-construction habitat should be made to compare their capacities to maintain the species and to determine the degree of likelihood that those species would find their way to the proposed habitat. By that technique, apparently, the effect of the project on the wildlife can be predicted with a fair amount of accuracy. Because none of this is done in the FES, the FES fails. Compare Sierra Club v. Froehlke, 534 F.2d 1289 (C.A. 8th Cir. 1976). ALTERNATIVES TO THE PROJECT The FES at H-l through H-3 discusses these alternatives: (1) No development of the project, (2) Development of groundwater for irrigation, and (3) Other alternative facilities and purposes. Under (1), the statement is principally a recapitulation of the benefits believed to be derived from the project stated negatively — a declaration that the benefits would not be Obtained, if the project were not developed. Under (2), the FES states that the groundwater table has been declining, while well irrigation has been increasing, and concludes that the present groundwater supply could not adequately supply the 77,000-acre service area of the proposed project without jeopardizing the quantity and quality of the remaining groundwater. This appears to be the same alternative as (1), because it amounts to no development of the project and anticipates irrigation in the same manner as in the past. Under (3), these alternative features are discussed: Power storage, flood control storage, additional irrigable areas, alternative reservoir sites, increasing the conservation storage capacity of the reservoir, and floodplain zoning. The foregoing discussions are not challenged by the plaintiffs, except by disagreeing with the conclusions and factual foundations of the asserted benefits of the project. Those challenges have been set out in previous sections of this memorandum and need not be recounted. Additionally, the plaintiffs press the thought that additional alternatives should have been explored in the FES. Title 42 U.S.C. § 4332(2)(E) requires that the agency “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” The applicable guidelines of the Council on Environmental Quality (submitted by the defendants as Exhibit 10), appearing in Federal Register, April 23, 1971, state that: “A rigorous exploration and objective evaluation of alternative actions that might avoid some or all of the adverse environmental effects is essential.” Such alternatives are not limited to those within the existing authority of the responsible agency. Several possible choices are mentioned in the plaintiffs’ various briefs, but only one was sufficiently supported by evidence at the trial to merit consideration. It is the alternative of using the project funds, some $160 million, or a portion thereof, to develop methods of improving livestock and crop production. If that could be done sufficiently, it is possible that water usage for irrigation could be reduced enough to allow normal groundwater reservoirs to accommodate the crops without a dam across the Niobrara River. Admittedly, the FES does not touch that alternative, and no study by the defendants has been made to determine whether it is a viable alternative. While this alternative may or may not offer promise, it deserves discussion in the FES, because it conceivably could satisfy the primary purpose of the project with friendlier environmental consequences. This is not contrary to Trout Unlimited v. Morton, 509 F.2d 1276 (C.A. 9th Cir. 1974), which says: “The range of alternatives that must be considered need not extend beyond those reasonably related to the purposes of the project.” The primary purpose of the O’Neill Unit is to provide economic stimulus and stability to the region of the project. That the present proposal seeks to do that through added irrigation does not make irrigation, as such, a purpose of the project. Although the defendants cite lows Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849 (C.A. 8th Cir. 1973), to support their position that the alternatives discussed are sufficient, that case is not helpful to them. There, alternatives were almost nonexistent and any alternative had environmental consequences as great as and almost identical to those of the project itself. Thus, the court’s saying that “notice of environmental consequences is all that is required” and that “The question to be asked is whether all reasonable alternatives to the project have been considered, even if some were only briefly alluded to or mentioned” does not suggest that alternatives which under the evidence may be viable need not be discussed at all. VAGUENESS One final issue is presented: Whether the defendants published an FES insufficiently detailed, too vague, too general, and too conclusional to form a basis for responsible evaluation and criticism. Although each of the attacks of the plaintiffs on the FES is bottomed in part upon the claim that the FES is to