U.S. Supreme Court Marsh v. Ore. Natural Res. Counc., 490
U.S. 360 (1989) Marsh v. Oregon Natural Resources
Council No. 87-1704. Argued January 9,
1989 Decided May 1, 1989 490
U.S. 360 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus The Elk Creek Dam is part of a three-dam project designed to
control the water supply in Oregon's Rogue River Basin. The Army
Corps of Engineers (Corps) completed an Environmental Impact
Statement (EIS) for the Elk Creek project in 1971, and, in 1980,
released its final Environmental Impact Statement, Supplement No. 1
(FEISS). Since the Rogue River is a premier fishing ground, the
FEISS paid special heed to water quality, fish production, and
angling, and predicted that the Elk Creek Dam would have no major
effect on fish production, but that the effect of the Lost Creek
and Elk Creek Dams on turbidity might, on occasion, impair fishing.
After reviewing the FEISS, the Corps' Division Engineer decided to
proceed with the project and, in 1985, Congress appropriated funds
for construction of the dam, now one-third completed. Respondents,
four Oregon nonprofit corporations, filed an action in the District
Court to enjoin construction of the Elk Creek Dam, claiming that
the Corps had violated the National Environmental Policy Act of
1969 (NEPA) by failing, among other things, to describe adequately
the environmental consequences of the project; to include a "worst
case analysis"; and to prepare a second supplemental EIS to review
information in two documents developed after 1980. The first -- the
Cramer Memorandum -- is an internal memorandum, prepared by two
Oregon Department of Fish and Wildlife (ODFW) biologists based on a
draft ODFW study on the effects of the Lost Creek Dam, suggesting
that the Elk Creek Dam will adversely affect downstream fishing;
and the second is a United States Soil Conservation Service (SCS)
soil survey containing information that might be taken to indicate
greater downstream turbidity than did the FEISS. The District Court
denied relief on all claims and held, inter alia, that the
Corps' decision not to prepare a second supplemental EIS to address
the new information was reasonable. The Court of Appeals reversed,
holding, among other things, that the FEISS was defective because
it did not include a complete mitigation plan and "worst case
analysis," and, with regard to the failure to prepare a
supplemental EIS, that the ODFW and SCS documents brought to light
significant new information Page 490 U. S. 361 that was probably accurate, and that the Corps' experts failed
to evaluate with sufficient care. Held: 1. The Court of Appeals' conclusions that the FEISS was
defective because it did not include a complete mitigation plan and
a "worst case analysis" are erroneous for the reasons stated in Robertson v. Methow Valley Citizens Council, ante p. 490 U. S. 332 . Pp. 490 U. S.
369 -370.

															2. The Corps' decision that the FEISS need not be supplemented
is not arbitrary and capricious, and should not be set aside. Pp. 490 U. S.
370 -385.

															(a) An agency must apply a "rule of reason" and prepare a
supplemental EIS if there remains "major Federal actio[n]" to
occur, and if the new information will affect the quality of the
human environment in a significant manner or to a significant
extent not already considered. Although not expressly addressed in
NEPA, such a duty is supported by NEPA's approach to environmental
protection and its manifest concern with preventing uninformed
action, as well as by Council on Environmental Quality and Corps
regulations, both of which make plain that, at times,
supplementation is required. Pp. 490 U. S.
370 -374.

															(b) Court review of the Corps' decision is controlled by the
"arbitrary and capricious" standard of the Administrative Procedure
Act, 5 U.S.C. § 706(2)(a). Respondents' supposition that the
determination that new information is "significant" is either a
question of law or of ultimate fact and, thus, "deserves no
deference" on review is incorrect, since the resolution of this
dispute involves primarily issues of fact concerning contentions
that the new information is accurate and undermines the FEISS'
conclusions, and that the Corps' review was incomplete,
inconclusive, or inaccurate. Because analysis of the documents
requires a high degree of technical expertise, this Court must
defer to the informed discretion of the responsible agency.
However, courts should not defer to an agency without carefully
reviewing the record and satisfying themselves that the agency has
made a reasoned decision based on its evaluation of the new
information. Pp. 490 U. S.
375 -378.

															(c) The Corps conducted a reasoned evaluation of the relevant
information in a formal Supplemental Information Report (SIR) and
reached a decision that was not arbitrary and capricious. The Corps
carefully scrutinized the Cramer Memorandum -- which did not
reflect the neutral stand of ODFW's official position -- and, in
disputing its accuracy and significance, hired two independent
experts who found significant fault in the methodology and
conclusions of the underlying draft ODFW study. Although the SIR
did not expressly comment on the SCS survey, in light of in-depth
studies conducted in 1974 and 1979, its Page 490 U. S. 362 conclusion that "turbidity effects are not expected to differ
from those described in the 1980 EISS" provided a legitimate reason
for not preparing a supplemental FEISS to discuss turbidity. Pp. 490 U. S.
378 -385.

															832 F.2d 1489, reversed and remanded.

															STEVENS, J., delivered the opinion for a unanimous Court. Page 490 U. S. 363 JUSTICE STEVENS delivered the opinion of the Court.

															This case is a companion to Robertson v. Methow Valley
Citizens Council, ante p. 490 U. S. 332 . It
arises out of a controversial decision to construct a dam at Elk
Creek in the Rogue River Basin in southwest Oregon. In addition to
the question whether an Environmental Impact Statement (EIS)
prepared pursuant to the National Environmental Policy Act of 1969
(NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., must
contain a complete mitigation plan and a "worst case analysis,"
which we answered in Robertson, it presents the question
whether information developed after the completion of the EIS
requires that a supplemental EIS be prepared before construction of
the dam may continue. I In the 1930's, in response to recurring floods in the Rogue
River Basin, federal and state agencies began planning a major
project to control the water supply in the Basin. [ Footnote 1 ] See, e.g., ch. 346, 49
Stat. 439. In 1961, a multiagency study recommended the
construction of three large dams: the Lost Creek Dam on the Rogue
River, the Applegate Dam on the Applegate River, and the Elk Creek
Dam on the Elk Creek near its confluence with the Rogue River. See H.R. Doc. No. 566, 87th Cong., 2d Sess., 7-89 (1962).
The following year, Congress authorized the Army Corps of Engineers
(Corps) to construct the project in accordance with the
recommendations Page 490 U. S. 364 of the 1961 study. See Flood Control Act of 1962,
Pub.L. 87-874, § 203, 76 Stat. 1192-1193. The Lost Creek Dam was
completed in 1977, and the Applegate Dam was completed in 1981.

															Plans for the Elk Creek Dam describe a 238-foot-high concrete
structure that will control the runoff from 132 square miles of the
135-square-mile Elk Creek watershed. When full, the artificial lake
behind the dam will cover 1,290 acres of land, will have an 18-mile
shoreline, and will hold 101,000 acre-feet of water. The dam will
cost approximately $100 million to construct, and will produce
annual benefits of almost $5 million. It will be operated in
coordination with the nearby Lost Creek Dam, where the control
center for both dams will be located. Its "multiport" structure,
which will permit discharge of water from any of five levels, makes
it possible to regulate, within limits, the temperature, turbidity,
[ Footnote 2 ] and volume of the
downstream flow. Although primarily designed to control flooding
along the Rogue River, additional project goals include enhanced
fishing, irrigation, and recreation.

															In 1971, the Corps completed its EIS for the Elk Creek portion
of the three-dam project and began development by acquiring 26,000
acres of land and relocating residents, a county road, and
utilities. Acknowledging incomplete information, the EIS
recommended that further studies concerning the project's likely
effect on turbidity be developed. The results of these studies were
discussed in a draft supplemental EIS completed in 1975. However,
at the request of the Governor of Oregon, further work on the
project was suspended, Page 490 U. S. 365 and the supplemental EIS was not filed to make it possible to
analyze the actual consequences of the construction of the Lost
Creek Dam, which was nearing completion, before continuing with the
Elk Creek project. Following that analysis and the receipt of a
statement from the Governor that he was "extremely interested in
pursuing construction of the Elk Creek Dam," [ Footnote 3 ] the Corps completed and released its
final Environmental Impact Statement, Supplement No. 1, in
December, 1980.

															Because the Rogue River is one of the Nation's premier fishing
grounds, the FEISS paid special heed to the effects the dam might
have on water quality, fish production, and angling. In its chapter
on the environmental effects of the proposed project, the FEISS
explained that water quality studies were prepared in 1974 and in
1979, and that "[w]ater temperature and turbidity have received the
most attention." FEISS 33. Using computer simulation models, the
1974 study predicted that the Elk Creek Dam might, at times,
increase the temperature of the Rogue River by one to two degrees
Fahrenheit and its turbidity by one to three JTU's. [ Footnote 4 ] Ibid. The 1979 study
took a second look at the potential effect of the Elk Creek Dam on
turbidity and, by comparing the 1974 study's predictions concerning
the effects of the Lost Creek Dam with actual measurements taken
after that dam became operational, it "increased technical
confidence in the mathematical model predictions . . . and
reinforced the conclusions of the 1974 [study]." Id. at
33-34. Based on these studies, the FEISS predicted that changes in
the "turbidity regime" would not have any major effect on fish
production, [ Footnote 5 ] Page 490 U. S. 366 but that the combined effect of the Lost Creek and Elk Creek
Dams on the turbidity of the Rogue River might, on occasion, impair
fishing. [ Footnote 6 ]

															Other adverse effects described by the FEISS include the
displacement of wildlife population -- including 100 blacktailed
deer and 17 elk -- and the loss of forest land and vegetation
resulting from the inundation of 1,290 acres of land with the
creation of the artificial lake. Id. at 26, 38, 46. Most
significantly, it is perfectly clear that the dam itself would
interfere with the migration and spawning of a large number Page 490 U. S. 367 of anadromous fish, [ Footnote
7 ] but this effect has been mitigated by the construction of a
new hatchery. [ Footnote 8 ] Id. at 35. Finally, the FEISS found that no endangered or
threatened species would be affected by the project. Id. at 27.

															On February 19, 1982, after reviewing the FEISS, the Corps'
Division Engineer made a formal decision to proceed with
construction of the Elk Creek Dam, "subject to the approval of
funds by the United States Congress." App. to Pet. for Cert. 53a.
In his decision, he identified the mitigation measures that had
already been taken with respect to the loss of anadromous fish
spawning habitat, as well as those that would "most likely" be
taken to compensate for the loss of other wildlife habitat. Id. at 56a-57a. He concluded that the benefits that would
be realized from the project "outweigh the economic and
environmental costs," and that completion would serve "the overall
public interest." Id. at 58a. In August, 1985, Congress
appropriated the necessary funds. [ Footnote 9 ] Act of Aug. 15, 1985, Pub.L. 99-88, 99 Stat.
314. The dam is now about one-third completed, and the creek has
been rechanneled through the dam. Page 490 U. S. 368 II In October, 1985, four Oregon nonprofit corporations [ Footnote 10 ] filed this action in
the United States District Court for the District of Oregon seeking
to enjoin construction of the Elk Creek Dam. Their principal claims
were that the Corps violated NEPA by failing (1) to consider the
cumulative effects of the three dams on the Rogue River Basin in a
single EIS; (2) adequately to describe the environmental
consequences of the project; (3) to include a "worst case analysis"
of uncertain effects; and (4) to prepare a second supplemental EIS
to review information developed after 1980.

															After conducting a hearing on respondents' motion for a
preliminary injunction, the District Judge denied relief on each of
the NEPA claims. [ Footnote
11 ] 628 F.
Supp. 1557 (1986). He first held that courts must employ a
standard of "reasonableness" in reviewing an agency's compliance
with NEPA. Under this standard of review, the court must

															"'make a pragmatic judgment whether the EIS's form, content and
preparation foster both informed decisionmaking and informed public
participation.'" Id. at 1562 (quoting California v. Block, 690
F.2d 753, 761 (CA9 1982)). Applying this standard, the District
Judge concluded that the Corps had, in fact, taken a sufficiently
"hard look" at the cumulative effects of the three dams and at the
individual effects of the Elk Creek Dam. 628 F. Supp. at 1563-1565.
He also concluded Page 490 U. S. 369 that a "worst case analysis" was not required, because the Corps
used state-of-the-art mathematical models, thus avoiding scientific
uncertainty and the need to fill gaps in information with a worst
case scenario. Id. at 1567. Finally, the District Court
held that the Corps' decision not to prepare a second supplemental
EIS to address new information was "reasonable."

															The new information relied upon by respondents is found in two
documents. The first, an internal memorandum prepared by two Oregon
Department of Fish and Wildlife (ODFW) biologists based upon a
draft ODFW study, suggested that the dam will adversely affect
downstream fishing, and the second, a soil survey prepared by the
United States Soil Conservation Service (SCS), contained
information that might be taken to indicate greater downstream
turbidity than did the FEISS. As to both documents, the District
Judge concluded that the Corps acted reasonably in relying on the
opinions of independent and Corps experts discounting the
significance of the new information. Id. at 1567-1568. At
the conclusion of his opinion, the District Judge directed that the
motion for preliminary relief be consolidated with trial on the
merits pursuant to Federal Rule of Civil Procedure 65(a)(2), and
thus denied respondents' claim for a permanent injunction as
well.

															The Court of Appeals reversed. 832 F.2d 1489 (CA9 1987).
Applying the same "reasonableness" standard of review employed by
the District Court, the Court of Appeals reached a contrary
conclusion, holding that the Corps had not adequately evaluated the
cumulative environmental impact of the entire project. Id. at 1497. Since the Corps did not seek review of that holding, we do
not discuss it. The court also held that the FEISS was defective
because it did not include a complete mitigation plan and because
it did not contain a "worst case analysis." Id. at
1493-1494, 1496-1497. These holdings were erroneous for the reasons
stated in our opinion in Robertson v. Methow Valley Citizens
Council, Page 490 U. S. 370 ante, p. 490 U. S. 332 , and
will not be further discussed. With regard to the failure to
prepare a second supplemental EIS, the Court of Appeals concluded
that the ODFW and SCS documents brought to light "significant new
information" concerning turbidity, water temperature, and epizootic
[ Footnote 12 ] fish disease;
that this information, although "not conclusive," is "probably
accurate;" and that the Corps' experts failed to evaluate the new
information with sufficient care. 832 F.2d at 1494-1496. The court
thus concluded that a second supplemental EIS should have been
prepared. Judge Wallace, writing in dissent, took issue with the
majority's analysis of the new information. In his view, it was
reasonable for the Corps to have concluded, based on its own expert
evaluation, that the information contained in the ODFW document was
inaccurate, and the information contained in the SCS document was
insignificant. Id. at 1500 (opinion concurring in part and
dissenting in part). III The subject of post-decision supplemental environmental impact
statements is not expressly addressed in NEPA. [ Footnote 13 ] Page 490 U. S. 371 Preparation of such statements, however, is at times necessary
to satisfy the Act's "action-forcing" purpose. [ Footnote 14 ] NEPA does not work by
mandating that agencies achieve particular substantive
environmental results. Rather, NEPA promotes its sweeping
commitment to "prevent or eliminate damage to the environment and
biosphere" by focusing Government and public attention on the
environmental effects of proposed agency action. 42 U.S.C. § 4321.
By so focusing agency attention, NEPA ensures that the agency will
not act on incomplete information only to regret its decision after
it is too late to correct. See Robertson, ante at 490 U. S. 349 .
Similarly, the broad dissemination of information mandated by NEPA
permits the public and other government agencies to react to the
effects of a proposed action at a meaningful time. Ante at 490 U. S.
349 -350. It would be incongruous with this approach to
environmental protection, and with the Act's manifest concern with
preventing uninformed action, for the blinders to adverse
environmental effects, once unequivocally removed, to be restored
prior to the completion of agency action simply because the
relevant proposal has received initial approval. As we explained in TVA v. Hill, 437 U. S. 153 , 437 U. S. 188 ,
n. 34 (1978), although

															"it would make sense to Page 490 U. S. 372 hold NEPA inapplicable at some point in the life of a project,
because the agency would no longer have a meaningful opportunity to weigh the benefits of the project versus the detrimental
effects on the environment,"

															up to that point,

															"NEPA cases have generally required agencies to file
environmental impact statements when the remaining governmental
action would be environmentally 'significant.' [ Footnote 15 ]"

															This reading of the statute is supported by Council on
Environmental Quality (CEQ) and Corps regulations, both of which
make plain that, at times, supplementation is required. The CEQ
regulations, which we have held are entitled to substantial
deference, see Robertson, ante at 490 U. S.
355 -356; Andrus v. Sierra Club, 442 U.
S. 347 , 442 U. S. 358 (1979), impose a duty on all federal agencies to prepare
supplements to either draft or final EIS's if there

															"are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts. [ Footnote 16 ]"

															Similarly, the Corps' own NEPA implementing regulations require
the preparation of a supplemental EIS if

															"new significant impact information, criteria or circumstances
relevant to environmental Page 490 U. S. 373 considerations impact on the recommended plan or proposed
action. [ Footnote 17 ]"

															The parties are in essential agreement concerning the standard
that governs an agency's decision whether to prepare a supplemental
EIS. They agree that an agency should apply a "rule of reason," and
the cases they cite in support of this standard explicate this rule
in the same basic terms. These cases make clear that an agency need
not supplement an EIS every time new information comes to light
after the EIS is finalized. [ Footnote 18 ] To require otherwise would render agency
decisionmaking intractable, always awaiting updated information
only to find the new information outdated by the time a decision is
made. [ Footnote 19 ] On the
other hand, and as petitioners Page 490 U. S. 374 concede, NEPA does require that agencies take a "hard look" at
the environmental effects of their planned action, even after a
proposal has received initial approval. See Brief for
Petitioners 36. Application of the "rule of reason" thus turns on
the value of the new information to the still-pending
decisionmaking process. In this respect the decision whether to
prepare a supplemental EIS is similar to the decision whether to
prepare an EIS in the first instance: if there remains "major
Federal actio[n]" to occur, and if the new information is
sufficient to show that the remaining action will "affec[t] the
quality of the human environment" in a significant manner or to a
significant extent not already considered, a supplemental EIS must
be prepared. [ Footnote 20 ] Cf. 42 U.S.C. § 4332(2)(C). Page 490 U. S. 375 The parties disagree, however, on the standard that should be
applied by a court that is asked to review the agency's decision.
Petitioners argue that the reviewing court need only decide whether
the agency decision was "arbitrary and capricious," whereas
respondents argue that the reviewing court must make its own
determination of reasonableness to ascertain whether the agency
action complied with the law. In determining the proper standard of
review, we look to § 10e of the Administrative Procedure Act (APA),
5 U.S.C. § 706, which empowers federal courts to "hold unlawful and
set aside agency action, findings, and conclusions" if they fail to
conform with any of six specified standards. [ Footnote 21 ] We conclude Page 490 U. S. 376 that review of the narrow question before us whether the Corps'
determination that the FEISS need not be supplemented should be set
aside is controlled by the "arbitrary and capricious" standard of §
706(2)(A).

															Respondents contend that the determination whether the new
information suffices to establish a "significant" effect is either
a question of law or, at a minimum, a question of ultimate fact
and, as such, "deserves no deference" on review. Brief for
Respondents 29. Apparently, respondents maintain that the question
for review centers on the legal meaning of the term "significant"
or, in the alternative, the predominantly legal question whether
established and uncontested historical facts presented by the
administrative record satisfy this standard. Characterizing the
dispute in this manner, they posit that strict review is
appropriate under the "in accordance with law" clause of §
706(2)(A) or the "without observance of procedure required by law"
provision of § 706 (2)(D). We disagree.

															The question presented for review in this case is a classic
example of a factual dispute the resolution of which implicates
substantial agency expertise. Respondents' claim that the Corps'
decision not to file a second supplemental EIS should be set aside
primarily rests on the contentions that the new information
undermines conclusions contained in the FEISS, that the conclusions
contained in the ODFW memorandum and the SCS survey are accurate,
and that the Corps' expert review of the new information was
incomplete, inconclusive, Page 490 U. S. 377 or inaccurate. The dispute thus does not turn on the meaning of
the term "significant" or on an application of this legal standard
to settled facts. Rather, resolution of this dispute involves
primarily issues of fact. [ Footnote 22 ] Because analysis of the relevant documents
"requires a high level of technical expertise," we must defer to
"the informed discretion of the responsible federal agencies." Kleppe v. Sierra Club, 427 U. S. 390 , 427 U. S. 412 (1976). See also Baltimore Gas & Electric Co. v. Natural
Resources Defense Council, Inc., 462 U. S.
87 , 462 U. S. 103 (1983) ("When examining this kind of scientific determination . . .
a reviewing court must generally be at its most deferential").
Under these circumstances, we cannot accept respondents'
supposition that review is of a legal question, and that the Corps'
decision "deserves no deference." Accordingly, as long as the
Corps' decision not to supplement the FEISS was not "arbitrary or
capricious," it should not be set aside. [ Footnote 23 ] Page 490 U. S. 378 As we observed in Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U. S. 402 , 401 U. S. 416 (1971), in making the factual inquiry concerning whether an agency
decision was "arbitrary or capricious," the reviewing court

															"must consider whether the decision was based on a consideration
of the relevant factors and whether there has been a clear error of
judgment."

															This inquiry must "be searching and careful," but "the ultimate
standard of review is a narrow one." Ibid. When
specialists express conflicting views, an agency must have
discretion to rely on the reasonable opinions of its own qualified
experts even if, as an original matter, a court might find contrary
views more persuasive. On the other hand, in the context of
reviewing a decision not to supplement an EIS, courts should not
automatically defer to the agency's express reliance on an interest
in finality without carefully reviewing the record and satisfying
themselves that the agency has made a reasoned decision based on
its evaluation of the significance -- or lack of significance -- of
the new information. A contrary approach would not simply render
judicial review generally meaningless, but would be contrary to the
demand that courts ensure that agency decisions are founded on a
reasoned evaluation "of the relevant factors." IV Respondents' argument that significant new information required
the preparation of a second supplemental EIS rests on two written
documents. The first of the documents is the so-called "Cramer
Memorandum," an intra-office memorandum prepared on February 21,
1985, by two scientists employed by ODFW. See Cramer
Memorandum 3a. [ Footnote 24 ]
The Cramer Memorandum, in turn, relied on a draft ODFW Page 490 U. S. 379 study describing the effects of the Lost Creek Dam on fish
production. The second document is actually a series of maps
prepared in 1982 by SCS to illustrate the composition of soil near
the Elk Creek shoreline. The information was provided to the Corps
for use in managing the project. Although respondents contend that
the maps contained data relevant to a prediction of the dam's
impact on downstream turbidity, the maps do not purport to shed any
light on that subject. Nor do they purport to discuss any
conditions that had changed since the FEISS was completed in 1980.
The Corps responded to the claim that these documents demonstrate
the need for supplementation of the FEISS by preparing a formal
Supplemental Information Report, dated January 10, 1986. See U.S. Army Corps of Engineers, Portland District, Elk
Creek Lake Supplemental Information Report No. 2, p. 7a
(hereinafter SIR). [ Footnote
25 ] The SIR explained:

															"While it is clear, based upon our review, that this information
does not require additional NEPA documentation, Corps regulations
provide that a Supplemental Information Report can be used to
disseminate information on points of concern regarding
environmental impacts set forth in the EIS. [ Footnote 26 ]"

															The significance of the Cramer Memorandum and the SCS survey is
subject to some doubt. Before respondents commenced this litigation
in October, 1985, no one had suggested that either document
constituted the kind of new information that made it necessary or
appropriate to supplement the FEISS. Indeed, the record indicates
that the Corps was not provided with a copy of the Cramer
Memorandum until after Page 490 U. S. 380 the lawsuit was filed. Since the probative value of that
document depends largely on the expert qualification of its
authors, the fact that they did not see fit to promptly apprise the
Corps of their concern -- or to persuade ODFW to do so -- tends to
discount the significance of those concerns. Similarly, the absence
of any pretrial expression of concern about the soil
characteristics described in the 1982 SCS survey is consistent with
the view that it shed little, if any, new light on the turbidity
potential of the dam. Yet even if both documents had given rise to
prompt expressions of concern, there are good reasons for
concluding that they did not convey significant new information
requiring supplementation of the FEISS.

															The Court of Appeals attached special significance to two
concerns discussed in the Cramer Memorandum: the danger that an
increase in water temperature downstream during fall and early
winter will cause an early emergence, and thus reduce survival, of
spring chinook fry, and the danger that the dam will cause high
fish mortality from an epizootic disease. Both concerns were based
partly on fact and partly on speculation.

															With respect to the first, the Cramer Memorandum reported that
the authors of the draft ODFW study had found that warming of the
Rogue River caused by the Lost Creek Dam had reduced the survival
of spring chinook fry; however, the extent of that reduction was
not stated, nor did the memorandum estimate the extent of warming
to be expected due to closure of the Elk Creek Dam. Instead, the
memorandum estimated that an increase of only one degree centigrade
in river temperature in January would decrease survival of spring
chinook "from by 60-80%." Cramer Memorandum 3a. The authors of the
memorandum concluded that, because the Elk Creek Dam is likely to
increase the temperature of the Rogue River, further evaluation of
this effect should be completed "before ODFW sets its final
position on this project." Ibid. Page 490 U. S. 381 The Corps' response to this concern in its SIR acknowledged that
the "biological reasoning is sound, and has been recognized for
some time," but then explained why the concern was exaggerated. SIR
10a. The SIR stressed that, because the model employed by ODFW had
not been validated, its predictive capability was uncertain.
Indeed, ODFW scientists subsequently recalculated the likely effect
of a one degree centigrade increase in temperature, adjusting its
estimate of a 60-to-80 percent loss downward to between 30 and 40
percent. Id. at 9a. Moreover, the SIR supplied a variable
missing in the Cramer Memorandum, suggesting that the Elk Creek Dam
would, in most cases, either reduce or leave unchanged the
temperature of the Rogue River. Id. at 10a. Discernible
increases were only found in July, August, and December of the
study year, and, even during those months, the maximum temperature
increase was only 0.6 degrees centigrade. Ibid. Finally,
the SIR observed that the Cramer Memorandum failed to take into
account the dam's beneficial effects, including its ability to
reduce peak downstream flow during periods of egg incubation and
fry rearing and its ability to reduce outflow temperature through
use of the multiport structure. [ Footnote 27 ] Id. at 9a-10a. Given these Page 490 U. S. 382 positive factors, the Corps concluded that any adverse effects
of the 0.6 degree temperature increase can be offset. Id. at 10a.

															With respect to the second concern emphasized by the Court of
Appeals, the Cramer Memorandum reported the fact that "an
unprecedented 76% of the fall chinook in 1979 and 32% in 1980 were
estimated to have died before spawning," and then speculated that
the Lost Creek Dam, which had been completed in 1977, was a
contributing cause of this unusual mortality. [ Footnote 28 ] Cramer Memorandum 4a. The Corps
responded to this by pointing out that the absence of similar
epizootics after the closure of the Applegate Dam and the evidence
of pre-spawning mortality in the Rogue River prior to the closing
of the Lost Creek Dam were inconsistent with the hypothesis
suggested in the Cramer Memorandum. See SIR 10a-11a. In
addition, the Corps noted that certain diseased organisms thought
to have been the cause of the unusually high mortality rates were
not found in the outflow from the Lost Creek Dam. [ Footnote 29 ] Id. at 11a. Page 490 U. S. 383 In thus concluding that the Cramer Memorandum did not present
significant new information requiring supplementation of the FEISS,
the Corps carefully scrutinized the proffered information.
Moreover, in disputing the accuracy and significance of this
information, the Corps did not simply rely on its own experts.
Rather, two independent experts hired by the Corps to evaluate the
ODFW study on which the Cramer Memorandum was premised found
significant fault in the methodology and conclusions of the study.
[ Footnote 30 ] We also think
it relevant that the Cramer Memorandum did not express the official
position of ODFW. See SIR 9a. In preparing the memorandum,
the authors noted that the agency had "adopted a neutral stand on
Elk Creek Dam," and argued that new information raised the question
whether "our agency should continue to remain neutral." [ Footnote 31 ] Cramer Memorandum Page 490 U. S. 384 3a. The concerns disclosed in the memorandum apparently were not
sufficiently serious to persuade ODFW to abandon its neutral
position.

															The Court of Appeals also expressed concern that the SCS survey,
by demonstrating that the soil content in the Elk Creek watershed
is different than assumed in the FEISS, suggested a greater
turbidity potential than indicated in the FEISS. 832 F.2d at 1495.
In addition, the court observed that ODFW scientists believe that
logging and road building in the Elk Creek watershed has caused
increased soil disturbance, resulting in higher turbidity than
forecast by the FEISS. Ibid. As to this latter point, the
SIR simply concluded that, although turbidity may have increased in
the early 1980's due to logging, "watershed recovery appears to
have occurred to reduce the turbidity levels back to those of the
1970's." SIR 12a. The implications of the SCS soil survey are of
even less concern. As discussed in the FEISS, water quality studies
were conducted in 1974 and 1979 using computer simulation models.
FEISS 33. The 1974 Study indicated that turbidity in the Rogue
River would increase by no more than one to three JTU's as a result
of the Elk Creek Dam, and the 1979 study verified this result. Ibid. These studies used water samples taken from Elk
Creek near the proposed dam site and from near the Lost Creek Dam,
and thus did not simply rely on soil composition maps in drawing
their conclusions. Id. at 18-19, 21-22, 33-34. Although
the SIR did not expressly comment on the SCS survey, in light of
the in-depth 1974 and 1979 studies, its conclusion that "the
turbidity effects are not expected to differ from those described
in the 1980 EISS" surely provided a legitimate reason Page 490 U. S. 385 for not preparing a supplemental FEISS to discuss the subject of
turbidity. SIR 12a.

															There is little doubt that, if all of the information contained
in the Cramer Memorandum and SCS survey was both new and accurate,
the Corps would have been required to prepare a second supplemental
EIS. It is also clear that, regardless of its eventual assessment
of the significance of this information, the Corps had a duty to
take a hard look at the proffered evidence. However, having done so
and having determined, based on careful scientific analysis, that
the new information was of exaggerated importance, the Corps acted
within the dictates of NEPA in concluding that supplementation was
unnecessary. Even if another decisionmaker might have reached a
contrary result, it was surely not "a clear error of judgment" for
the Corps to have found that the new and accurate information
contained in the documents was not significant, and that the
significant information was not new and accurate. As the SIR
demonstrates, the Corps conducted a reasoned evaluation of the
relevant information and reached a decision that, although perhaps
disputable, was not "arbitrary or capricious."

															The judgment of the Court of Appeals is accordingly reversed,
and the case is remanded for further proceedings consistent with
this opinion. It is so ordered. [ Footnote 1 ]

															As described by the Army Corps of Engineers:

															"Lying within the southwest corner of Oregon, the Rogue River
Basin drains a 5,060 square mile area in Jackson, Josephine, Coos,
and Klamath Counties, as well as small portions of Del Norte and
Siskiyou Counties in California. . . . Rogue River passes through
vastly different environmental settings in the course of its
journey from its upper reaches near Crater Lake to the Pacific
Ocean at Gold Beach, Oregon. The climatological factors and other
characteristics of the basin are such that floods are frequently
experienced."

															U.S. Army Corps of Engineers, Portland District, Elk Creek Lake
Environmental Impact Statement, Supplement No. 1, p. 1 (Dec.1980)
(hereinafter FEISS).

															[ Footnote 2 ]

															"Turbidity is an expression of the optical property of water
which causes light to be scattered and absorbed, rather than
transmitted through in straight lines. Turbidity is caused by the
presence of suspended matter." Id. App. E, p. 3. This optical property of water is most
commonly measured using the Jackson Turbidity Unit (JTU).

															"A general rule of thumb guideline is that 5 JTU is the limit
for drinking water, 10 JTU impairs flyfishing, 20 JTU impairs other
fishing methods, and long-term 50 JTU water alters fish
behavior." Id. at 21.

															[ Footnote 3 ] See Letter from Governor Atiyeh of August 1, 1979,
reprinted in id., App. F.

															[ Footnote 4 ] See n 2, supra. [ Footnote 5 ]

															The FEISS explained that suspended sediments can reduce fish
production by clogging or injuring gill structures, by causing
abrasions, by reducing food supply, and by making it more difficult
for fish to locate what food is available by reducing visibility.
FEISS 37. The Study nonetheless concluded:

															"Much of the heavy suspended materials will settle out in Elk
Creek reservoir, so no downstream effect of siltation is expected.
Average annual downstream turbidity will be the same with or
without the project."

															"No major adverse effect on fish production in the Rogue River
is expected as a result of the changes in the turbidity regime as a
result of the Elk Creek project. Minor effects on production can be
expected in the reach of Elk Creek between the project and its
confluence with the Rogue River during normal years, when turbidity
will be higher than without the project. However, the project will
also provide periods when turbidity will be lower than without the
project. The multi-level withdrawal capability which will be built
into the Elk Creek project will provide the ability to minimize
turbidity effects on fish production." Ibid. [ Footnote 6 ]

															The impact on fishing is described as follows:

															"Increases in magnitude and extended duration of turbidity in
the Rogue River are expected to result from operation of Elk Creek
Dam. These increases could affect angling for salmonids in the
Rogue because the ability of fish to see lures or flies is impaired
by turbidity. Fly-fishing for resident trout and summer steelhead
would be the most vulnerable to effects of turbidity. The
fly-fishing season runs from late July into October. According to
Rogue River guides and [Oregon Department of Fish and Wildlife]
biologists, fly-fishing success declines at a turbidity level of 10
JTU or greater. Other fishing methods are not productive when
turbidity exceeds 20 JTU. It is possible that fisheries at other
times, such as in the winter, will be affected for short periods.
It is not expected that outflow from Lost Creek and Elk Creek Dams
would, under the worst conditions, ever cause turbidity in the
Rogue River to exceed 13 JTUs during late summer and early
fall." Id. at 36. A "salmonid" is a soft-finned, elongated
fish that has an upturned final vertebrae. See Webster's
Third International Dictionary 2004 (1981). Salmon and trout are
two common salmonids. Ibid. [ Footnote 7 ]

															"Anadromous fish are those which spend most of their life in the
open sea, but which return as adults to freshwater streams . . . to
spawn." Puyallup Tribe, Inc. v. Washington Game Dept., 433 U. S. 165 , 433 U. S. 168 (1977).

															[ Footnote 8 ]

															As described in the FEISS:

															"Cole M. Rivers Fish Hatchery was constructed to mitigate the
loss of anadromous fish-spawning habitat in Elk Creek, Applegate
River, and the upper Rogue River, as well as to provide rainbow
trout and kokanee for stocking in the reservoirs as mitigation for
lost trout production. The hatchery is located about 0.2 miles
downstream of Lost Creek Dam. It has a design capacity of 355,000
pounds of salmon and steelhead and 71,000 pounds of trout and
kokanee. Production for Elk Creek would utilize approximately 14
percent of the total design capacity. . . ."

															FEISS 35.

															[ Footnote 9 ]

															In the Report accompanying this legislation, the Senate
Appropriations Committee stressed that it

															"included specific language in the legislation directing the
Secretary of the Army, acting through the Chief of Engineers, to
award a continuing contract for construction of the main dam for
the Elk Creek Lake project."

															S.Rep. No. 99-82, p. 97 (1985).

															[ Footnote 10 ]

															The four corporations, which are respondents herein, are the
Oregon Natural Resources Council, the Oregon Guides and Packers
Association, Inc., the Rogue Fly-fishers, Inc., and the Rogue River
Guides Association.

															[ Footnote 11 ]

															Respondents' complaint also included claims under the Wild and
Scenic Rivers Act (WASRA), 16 U.S.C. § 1278, and the Freedom of
Information Act (FOIA), 5 U.S.C. § 552. However, prior to the
hearing, respondents withdrew their WASRA claim. In order to
facilitate prompt consideration of respondents' motion for a
preliminary injunction on the NEPA claims, the District Judge
postponed consideration of the FOIA claim for a later date. After
considering the NEPA claims, the District Judge directed the entry
of final judgment pursuant to Federal Rule of Civil Procedure 54(b)
to permit prompt appellate review.

															[ Footnote 12 ]

															An epizootic disease is one that affects many animals of the
same kind at the same time. See 832 F.2d at 1496, n.
5.

															[ Footnote 13 ]

															NEPA provides in pertinent part:

															"The Congress authorizes and directs that, to the fullest extent
possible"

															" * * * *" "(2) all agencies of the Federal Government shall -- "

															" * * * *" "(C) include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting
the quality of the human environment, a detailed statement by the
responsible official 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."

															83 Stat. 853, 42 U.S.C. § 4332.

															[ Footnote 14 ] Cf. Andreen, In Pursuit of NEPA's Promise: The Role of
Executive Oversight in the Implementation of Environmental Policy,
64 Ind. L.J. 205, 247-248 (1989) (Supplementation is at times
necessary because "[t]he entire efficacy of the EIS process is
called into question when changes are made to a project after the
publication of a final impact statement").

															The term "action forcing" was introduced during the Senate's
consideration of NEPA, see Kleppe v. Sierra Club, 427 U. S. 390 , 427 U. S. 409 ,
n. 18 (1976), and refers to the notion that preparation of an EIS
ensures that the environmental goals set out in NEPA are "infused
into the ongoing programs and actions of the Federal Government,"
115 Cong.Rec. 40416 (1969) (remarks of Sen. Jackson). See
also 40 CFR § 1500.1(a) (1987) ("Section 102(2) contains action-forcing' provisions to make sure that federal agencies
act according to the letter and spirit of the Act"). [ Footnote 15 ]

															In support of this latter proposition, we cited Environmental Defense Fund v. TVA, 468 F.2d 1164 (CA6
1972), with approval. In that case, the Court of Appeals upheld an
injunction barring the continued construction of a dam on the
Little Tennessee River pending the filing of an adequate EIS,
notwithstanding the fact that the project was initially approved
and construction commenced prior to the effective date of NEPA.

															[ Footnote 16 ]

															The CEQ regulation provides, in part:

															"Agencies:"

															"(1) Shall prepare supplements to either draft or final
environmental impact statements if:"

															"(i) The agency makes substantial changes in the proposed action
that are relevant to environmental concerns; or"

															"(ii) There are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed
action or its impacts."

															"(2) May also prepare supplements when the agency determines
that the purposes of the Act will be furthered by doing so."

															40 CFR § 1502.9(c) (1987).

															[ Footnote 17 ]

															The Corps regulations provide in relevant part:

															" Supplements. A Supplement to the draft or final EIS on
file will be prepared whenever significant impacts resulting from
changes in the proposed plan or new significant impact information,
criteria or circumstances relevant to environmental considerations
impact on the recommended plan or proposed action as discussed in
40 CFR 1502.9(c). A supplement to a draft EIS will be prepared,
filed and circulated in the same manner as a draft EIS. . . . A
supplement to a final EIS will be prepared and filed first as a draft supplement and then as a final supplement.
. . ."

															33 CFR § 230.11(b) (1987).

															[ Footnote 18 ] Compare Warm Springs Dam Task Force v. Gribble, 621
F.2d 1017, 1024 (CA9 1980) (cited in Brief for Respondents 32) and Stop H-3 Assn. v. Dole, 740 F.2d 1442, 1463-1464 (CA9
1984) (same), cert. denied, 471 U.
S. 1108 (1985), with Cuomo v. NRC, 249
U.S.App.D.C. 54, 57, 772 F.2d 972, 975 (1985) (per curiam) (cited
in Reply Brief for Petitioners 14), and Friends of the River v.
FERC, 231 U.S.App.D.C. 329, 345, 720 F.2d 93, 109 (1983)
(same).

															[ Footnote 19 ]

															In other contexts we have observed:

															"'Administrative consideration of evidence . . . always creates
a gap between the time the record is closed and the time the
administrative decision is promulgated. . . . If, upon the coming
down of the order, litigants might demand rehearing as a matter of
law because some new circumstance has arisen, some new trend has
been observed, or some new fact discovered, there would be little
hope that the administrative process could ever be consummated in
an order that would not be subject to reopening.'" Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U. S. 519 , 435 U. S.
554 -555 (1978) (quoting ICC v. Jersey City, 322 U. S. 503 , 322 U. S. 514 (1944)). See also Northern Lines Merger Cases, 396 U. S. 491 , 396 U. S. 521 (1970) (same).

															[ Footnote 20 ]

															CEQ regulations define the term "significantly" as follows:

															"'Significantly' as used in NEPA requires considerations of both
context and intensity:"

															"(a) Context. This means that the significance of an
action must be analyzed in several contexts, such as society as a
whole (human, national), the affected region, the affected
interests, and the locality. Significance varies with the setting
of the proposed action. . . ."

															"(b) Intensity. This refers to the severity of impact.
. . . The following should be considered in evaluation of
intensity:"

															"(1) Impacts that may be both beneficial and adverse. A
significant effect may exist even if the Federal agency believes
that, on balance, the effect will be beneficial."

															"(2) The degree to which the proposed action affects public
health or safety."

															"(3) Unique characteristics of the geographic area, such as
proximity to historic or cultural resources, park lands, prime
farmlands, wetlands, wild and scenic rivers, or ecologically
critical areas."

															"(4) The degree to which the effects on the quality of the human
environment are likely to be highly controversial."

															"(5) The degree to which the possible effects on the human
environment are highly uncertain or involve unique or unknown
risks."

															"(6) The degree to which the action may establish a precedent
for future actions with significant effects or represents a
decision in principle about future consideration."

															"(7) Whether the action is related to other actions with
individually insignificant but cumulatively significant impacts. .
. ."

															"(8) The degree to which the action may adversely affect
districts, sites, highways, structures, or objects listed in or
eligible for listing in the National Register of Historic Places or
may cause loss or destruction of significant scientific, cultural,
or historic resources."

															"(9) The degree to which the action may adversely affect an
endangered or threatened species or its habitat. . . . "

															"(10) Whether the action threatens a violation of Federal,
State, or local law. . . ."

															40 CFR § 1508.27 (1987).

															[ Footnote 21 ]

															Title 5 U.S.C. § 706(2) provides that a reviewing court
shall:

															"hold unlawful and set aside agency action, findings, and
conclusions found to be -- "

															"(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;"

															"(B) contrary to constitutional right, power, privilege, or
immunity;"

															"(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;"

															"(D) without observance of procedure required by law;"

															"(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of any agency hearing provided by statute; or"

															"(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court."

															"In making the foregoing determinations, the court shall review
the whole record or those parts of it cited by a party, and due
account shall be taken of the rule of prejudicial error."

															It is uncontested that the present controversy is not controlled
by §§ 706(2)(E) or 706(2)(F), which primarily apply in cases
involving either agency rulemaking or adjudication. Nor is there a
claim that the Corps exceeded its constitutional authority under §
706(2)(B) or its statutory authority under § 706(2)(C).

															[ Footnote 22 ]

															Of course, whenever a court reviews an agency decision or action
under the APA, some legal standard is involved. Otherwise,
there would be "no law to apply," and thus no basis for APA review. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 401 U. S. 410 (1971) (discussing 5 U.S.C. § 701(a)(2)).

															[ Footnote 23 ]

															Respondents note that several Courts of Appeals, including the
Court of Appeals for the Ninth Circuit as articulated in this and
other cases, have adopted a "reasonableness" standard of review, see, e.g., Sierra Club v. Froehlke, 816 F.2d 205, 210 (CA5
1987); Enos v. Marsh, 769 F.2d 1363, 1373 (CA9 1985); National Wildlife Federation v. Marsh, 721 F.2d 767, 782
(CA11 1983); Massachusetts v. Watt, 716 F.2d 946, 948 (CA1
1983); Monarch Chemical Works, Inc. v. Thone, 604 F.2d
1083, 1087-1088 (CA8 1979), and argue that we should not upset this
well settled doctrine. This standard, however, has not been adopted
by all of the Circuits. See, e.g., Wisconsin v.
Weinberger, 745 F.2d 412, 417 (CA7 1984) (adopting "arbitrary
and capricious" standard). Moreover, as some of these courts have
recognized, the difference between the "arbitrary and capricious"
and "reasonableness" standards is not of great pragmatic
consequence. See Manasota-88, Inc. v. Thomas, 799 F.2d
687, 692, n. 8 (CA11 1986) ("As a practical matter, . . . the
differences between the reasonableness' and `arbitrary and
capricious' standards of review are often difficult to discern"); River Road Alliance, Inc. v. Corps of Engineers of United
States Army, 764 F.2d 445, 449 (CA7 1985) ("we are not sure
how much if any practical difference there is between `abuse of
discretion' and `unreasonable"'), cert. denied, 475 U. S. 1055 (1986). Accordingly, our decision today will not require a
substantial reworking of long-established NEPA law. [ Footnote 24 ]

															The Cramer Memorandum is reprinted in the Brief for Petitioners.
Page references are to the appendix to that brief.

															[ Footnote 25 ]

															The SIR is reprinted in the Brief for Petitioners. Page
references are to the appendix to that brief

															[ Footnote 26 ]

															Corps regulations provide:

															"Whenever it is clearly understood that an EIS supplement is not
necessary but where [it] is only necessary to provide supplemental
information to a point of concern discussed in the final EIS . . .
a supplemental information report will be prepared and filed with
EPA."

															33 CFR § 230.11(d) (1987).

															[ Footnote 27 ]

															In this respect, the SIR noted that "[t]he reduction in peak
floodflows can partially or fully offset the negative effects of
temperature increases on fry survival," and any remaining adverse
effects can be "further mitigated by the ability of the intake
tower to regulate outflow temperatures." SIR 9a-10a. A letter sent
from ODFW to the Corps in August 1985 supports the conclusion that
the multiport system can be used to regulate temperature. The
letter, reporting on an attempt to reduce outflow temperature at
the Lost Creek Dam, asserts:

															"The experimental reduction in outflow temperatures last October
and November, in conjunction with other factors, appears to have
improved survival to the fry stage. We had the lowest number on
record of wild fish spawning, yet this spring we had the second
highest abundance of spring chinook fry on record. The low density
of spawners, the absence of floods last winter, and the low
incubation temperatures all contributed to the high survival of
chinook eggs. We do not know yet what the river temperatures last
October-November would have been without the dam, but release
temperatures were lower than previous years since dam closure."

															Letter from Dr. John R. Donaldson of August 15, 1985, Admin.
Record, Doc. No. 109.

															[ Footnote 28 ]

															The authors made clear that their concern was not based on any
identifiable nexus between the dam closure and the epizootics:

															"We have not determined the actual cause of the epizootics in
1979 and 1980, but we suspect that Lost Creek Dam contributed to
them because no such mortality of fall chinook had been documented
previously."

															Cramer Memorandum 4a.

															As Judge Wallace noted in his dissenting opinion, the Cramer
Memorandum did not address the possibility that diseased hatchery
fish, rather than the Lost Creek Dam, caused the 1979 and 1980
epizootics. See 832 F.2d 1489, 1501 (CA9 1987) (opinion
concurring in part and dissenting in part).

															[ Footnote 29 ]

															The Cramer Memorandum also raised concerns about the effect of
increased downstream flow on fishing and fish production. The
memorandum explained that

															"[a]nglers and guides have complained that high flows have
'washed out' many of their favorite fishing riffles, and that fly
angling is no longer effective in most areas because the water is
too deep and swift." Id. at 4a. In addition, the memorandum observed
that

															"increased flows during September and October cause spring
chinook to spawn higher on the gravel bars, and this increases the
chances that redds will be dewatered when flows are reduced as the
dams fill during February-April." Ibid. However, as the SIR observed, the FEISS did
indicate that construction of the dam would cause some unavoidable
adverse effects on fishing. See SIR 11a. Moreover, the
Cramer Memorandum did not suggest that there has been, or will
likely be, any significant increase in due to dewatering, or that
this effect cannot be minimized through control of the dam's
outflow. Ibid. [ Footnote 30 ]

															The first of these experts, although agreeing with portions of
the ODWF study, indicated that the study

															"contains considerable statistical inaccuracies, over-extension
of statistical methods, and undue biological speculation that
detracts from an otherwise very laudable professional effort."

															S. B. Mathews, Critique of Lost Creek Dam Fisheries Evaluation
1, Admin.Record, Doc. No. 112. The second, although providing a
generally more positive assessment of the study, indicated that
comparisons between pre-dam and post-dam years "is not likely to
yield conclusive results." L. Calvin, Lost Creek Dam Fisheries
Evaluation, Phase I Completion Report 2, Admin.Record, Doc. No.
114.

															[ Footnote 31 ]

															Their memorandum concluded:

															"Harry, the spring chinook runs on the Rogue are at an all-time
low point. Anglers are becoming increasingly frustrated and upset
about low runs, shortened seasons, and smaller bag limits. They are
also becoming more vocal. We feel the agency stands to lose much of
its credibility if we continue to support Elk Creek Dam after
knowing what has occurred to the adult spring chinook returns
following completion of Lost Creek Dam. The Commission should be
made aware of this new information and the possible consequences if
they continue to hold to the middle of the road."

															Cramer Memorandum 5a.