KAREN OWEN BOWDRE, District Judge
This case is before the court on Plaintiffs' Motion for Summary Judgment (Doc. # 29) and Defendants' Cross Motion for Summary Judgment (Doc. # 32). The issues raised in the cross motions for summary judgment have been fully briefed by the parties. The court held a hearing on these motions on February 20, 2003. After the hearing, the court allowed the parties to submit additional briefs on whether the United States Corps of Engineers ("COE") took a hard look at the future water quality of the proposed impoundment and whether the COE took a hard look at the downstream effects of the proposed dam. On April 2, 2003, Defendants submitted a post-argument memorandum addressing these issues (Doc. # 49). On April 24, 2003, plaintiffs submitted a response to defendants' memorandum (Doc. # 52). Thus, these motions are now ripe for decision.
The plaintiffs in their Complaint seek declaratory and injunctive relief. In essence, they seek a declaration that the Environmental Assessment (EA) issued by the COE violated the National Environmental Policy Act, (NEPA) 42 U.S.C. § 4332 (2)(c), and seek an order vacating of the Duck River Project permit. They also seek an injunction prohibiting the COE from allowing the Duck River Project to proceed until the COE prepares an environmental impact statement.
The issue before the court is whether the COE's decision to issue a finding of no significant impact ("FONSI") and the permit to build the dam, as opposed to requiring the preparation of an Environmental Impact Statement ("EIS"), was arbitrary and capricious. Upon due consideration, the court answers this question in the affirmative for the reasons stated in the Memorandum Opinion issued contemporaneously herewith. The court finds that the COE did not take a hard look at the cumulative effects of other proposed projects in the Black Warrior River Basin, the future water quality of the proposed reservoir, or the effect the proposed dam will have on the Mulberry Fork of the Black Warrior River. The court also finds that, even if the COE took a hard look at these environmental issues, the COE failed to make a convincing case for issuing its FONSI.
Because the court concludes that the Administrative Record does not support the agency's action, the court finds that remand is necessary. Therefore, the permit issued for the Duck River Project must be vacated. Consequently, the court GRANTS IN PART Plaintiffs' Motion for Summary Judgment (Doc. # 29) insofar as plaintiffs request a declaration that the EA violated NEPA and seek a remand to the agency for review. However, the court DENIES all other relief requested by plaintiffs. On remand, the COE should take a hard look at the issues discussed in the Memorandum Opinion, reconsider its decision, and determine whether an EIS is required for the Duck River project.
Defendants' Motion for Summary Judgment (Doc. # 32) is DENIED with prejudice. Costs are to be taxed against the Defendants.
Done and ORDERED this 15th day of August, 2003