MEMORANDUM OPINION OF UNITED STATES DISTRICT JUDGE
CHARLES R. RICHEY
This case is before the Court on Plaintiff's Motion for a Preliminary Injunction to prevent the Defendants from constructing a 3.2 billion dollar Upper Mississippi River Navigation System and its first component, Locks and Dam 26, located at Alton, Illinois.
On August 6, 1974 two actions were filed in this Court by the Izaak Walton League of America, et al. and the Atchison, Topeka and Santa Fe Railway Company, et al.
against Howard H. Callaway, Secretary of the Department of the Army, the Army Corps of Engineers, and Lieutenant General William G. Gribble, Chief of Engineers, Department of the Army. On the same day, United States District Judge Howard F. Corcoran issued a temporary restraining order prohibiting the letting of bids for the proposed Locks and Dam 26. On August 20, 1974, this Court granted the Plaintiffs' Motion to Consolidate the two cases and a hearing was held on the Motion for a Preliminary Injunction. This Court is now faced with the important task of deciding questions of national importance in that they involve a substantial environmental, economic, and social impact upon the entire inland waterway system of the midwestern United States, and the manner by which similar projects in other parts of the nation will be handled in the future by Congress and the Army Corps of Engineers.
Locks and Dam 26 is one of a series of locks and dams extending from Alton, Illinois to St. Paul, Minnesota. Together, these twenty nine locks and dams make commercial traffic possible on the Upper Mississippi River and the Illinois Waterway. Locks and Dam 26, however, as the Defendants have recognized, is the pivotal crossroads of this river complex. This is because it is the first locks and dam to the Upper Mississippi River and serves as the gateway of all commerce. This is not an overstatement. Locks and Dam 26 is a key intersection affecting the total inland waterway system of America's breadbasket. All traffic from the Upper Mississippi River and Illinois Waterway must pass through these locks on its way west on the Missouri River, east on the Ohio River, and south on the Lower Mississippi River.
The existing Locks and Dam 26 was originally authorized by Congress in the 1930's and was operational by 1938. At the present time, it has fallen into an alleged state of deterioration. In 1968, in recognition of the condition of the structure, a report prepared by the Army Corps of Engineers was submitted to the Board of Engineers for Rivers and Harbors and the Secretary of the Army recommended that a new structure, located two miles downstream, be built to replace the existing facility. Agency approval was given in 1969, and in 1970 Congress appropriated funds for planning. A Survey Report and a General Design Memorandum were prepared, followed by a Draft Environmental Impact Statement. In 1974, a Final Environmental Impact Statement was released. And, after hearings before both the House and Senate Subcommittees on Appropriations (Public Works), Congress, on August 15, 1974, appropriated over twenty-two (22) million dollars for the project.
This money, say the Defendants, will go to the construction of a coffer dam,
the first major step toward the building of a new Locks and Dam 26. This will take over nine months. The entire structure will not be completed for at least eight years, although the Defendants admit that it will probably be closer to eleven years before the entire facility is operational.
The total cost of the project has been estimated by the Defendants to be over 383 million dollars.
The gravamen of the Plaintiffs' claim is that the proposed Locks and Dam 26 is merely the first step in a multi-billion dollar project to rebuild the Upper Mississippi River System without specific authorization from Congress in violation of 33 U.S.C. § 401.
Specifically, the Plaintiffs maintain that the Army Corps of Engineers intends to rebuild the entire system because 1.) the dramatic increase in size and capacity of the new Locks and Dam 26 will so affect the other structures that it will necessitate their rebuilding, 2.) the life expectancy of the entire system, not just Locks and Dam 26, is nearing its end, and 3.) the Corps in other documents, specifically the Upper Mississippi River Comprehensive Basin Study of 1970 (Appendix J), has indicated that the building of a new Locks and Dam 26 will require numerous other structures, or modification of existing structures, in order to cope with the increased capacity.
Plaintiffs further claim that the Army Corps of Engineers has violated Section 209 of the Rivers and Harbors Act of 1970,
in that the Corps 1.) ignored the objectives of national economic development and environmental protection, 2.) improperly and inadequately assessed the benefits and costs of the project and, 3.) failed to consider feasible alternatives. Coupled with the above claim, Plaintiffs allege that the Army Corps of Engineers has also violated Section 122 of the Rivers and Harbors Act of 1970
by not examining possible adverse economic, environmental, and social effects of the project. And, finally, the Plaintiffs assert that the National Environmental Policy Act of 1969 (hereinafter NEPA)
has been abridged because the Army Corps of Engineers has insufficiently analyzed and assessed the environmental impact of the proposed Locks and Dam 26 and the system-wide rebuilding. It is Plaintiffs claim that the Corps has illegally attempted to segment the system so as to facilitate its justification and to hide its true intent to rebuild the system from the Congress and the public. Furthermore, Plaintiffs state that the Corps has transgressed the mandates of NEPA by: failing to disclose the data used to prepare the Environmental Impact Statement (hereinafter EIS), thereby impeding public and Congressional scrutiny of the project, using unrealistic and outdated data and thereby rendering the EIS analysis and assessment arbitrary and capricious and because it fails to analyze alternatives or their environmental impact.
The Defendants contest these claims and allege that the proposed rebuilding of Locks and Dam 26 does not need the consent of Congress, but rather is specifically permitted by 33 U.S.C. § 5.
The Defendants, in the alternative, maintain that even if Section 5 were found to be inapplicable, recent Congressional appropriations are sufficient, albeit implied, authorization for a new Locks and Dam 26. The Defendants strongly protest that this is not a multi-billion dollar project encompassing numerous structures, but rather, is singular in nature, even though they admit that other projects are being considered. In response to the alleged violations of Section 122 and 209 of the Rivers and Harbors Act of 1970, the Defendants argue that Section 122 is inapplicable because the project was authorized prior to the enactment of the statute thereby exempting the project from its requirements and that, regardless of this technicality, the Corps has given adequate treatment to the factors contained in Sections 122 and 209.
The Defendants also dispute the claimed violations of NEPA on the grounds that the plaintiffs have not borne their burden of proving a lack of reasonable, good faith compliance and that the EIS is sufficient because the alleged omissions were considered and discussed in an appropriate manner and because the Corps had a right to omit certain information as beyond the scope of reasonable concern.
A. THE PROPOSED LOCKS AND DAM 26 AT ALTON, ILLINOIS, REQUIRES THE CONSENT OF CONGRESS UNDER 33 U.S.C. § 401 AND MAY NOT BE BUILT WITHOUT AUTHORIZATION UNDER 33 U.S.C. § 5.
In order to decide whether Congressional consent is required, the relationship between 33 U.S.C. §§ 5 and 401 must be examined and understood. Under the latter Section, Congressional consent is required before the commencement of construction of any dam or other structure in a navigable river of the United States.
The word any, in regard to this case, is crucial. On its face, Section 401 would appear to prohibit the building of any structures, even by the Federal government, without prior Congressional approval. However, Section 5 permits the Army Corps of Engineers to entirely reconstruct a dam or other structure, that is to build a dam or other structure in place of an existing structure, without the consent of Congress when, due to its condition, reconstruction is "absolutely essential" to its efficient and economical maintenance and operation, and further permits the Corps to make modifications in plan and location as "may be necessary to provide adequate facilities for existing navigation." Thus the word any in Section 401 is qualified by Section 5, to the extent that the criteria of Section 5 are met. A critical distinction can, therefore, be drawn between reconstructing under Section 5 and what may be characterized as rebuilding under Section 401, the latter term being a designation for those replacement structures which do not meet the criteria of Section 5.
The Defendants would have this Court hold that since the present Locks and Dam 26 is considered by the Corps to be obsolete, its replacement is within the ambit of Section 5, requiring no specific authorization.
This argument hinges on the word "existing" in Section 5. It is the Defendants' contention that this term encompasses future traffic needs since it would be illogical for Congress to allow for a structure that would be obsolete on the drawing board. While this Court agrees that Congress did not legislate planned obsolescence, the agency's position must be rejected as there are compelling reasons that it is wrong. See, Wilderness Society v. Morton, 156 U.S. App. D.C. 121, 479 F.2d 842, 865 (1973).
What the Defendants have failed to appreciate is the consequence of their position. If the Army Corps of Engineers can replace any existing structure merely because it considers it to be obsolete, then not only would there be no distinction between Sections 5 and 401, but also there would be raised the specter of an unlawful delegation of legislative power. The plain meaning of Section 5 prohibits this Court from adopting the Defendants' interpretation. Section 5 is essentially a maintenance provision. It does not give the Corps a right of replacement in perpetuity.14 Section 5 permits a reconstruction only when it is "absolutely essential", and only allows a modification in plan and location when it is necessary to meet the needs of "existing" navigation. The clear meaning of the Section is that the Corps may replace a structure which has become ineffective or damaged, but may not rebuild a structure merely to meet expected future increases in traffic. In essence, only Congress can authorize such a project.
The Defendants argue that Section 5 should be given a broader interpretation. They contend that this is possible if the word "existing" is interpreted to include future traffic. The word "existing" in the statute, however, connotes the present and not the future. This is its plain meaning and there is no legislative history to the contrary. Although this may appear to the Defendants as unduly restrictive, when Section 5 is read in conjunction with Section 401, it is apparent that all the Corps has to do to build a new structure to replace one that has allegedly become obsolete is to obtain the consent of Congress. It is understandable that Congress reserved such a decision to itself as in many instances it would entail, as does the instant matter, considerations which would substantially affect the environment, the economy, and the society of the nation. The Corps has admitted that this is "the largest construction project in the history of the mid-west." EIS at 138. It is impossible for this Court to believe that Congress would permit the decision to proceed to be made by the Corps and not by Congress.
It must be recognized that there is a discernible line between reconstructing and rebuilding. It can be ascertained by determining whether the proposed structure represents a material change in the character and capacity of the existing structure. In the case of Gulf, C.&S.F. Ry. Co. v. Meadows, 56 Tex. Civ. App. 131, 120 S.W. 521, 524 (1909) a Texas court stated:
Appellant in its pleadings and brief claims that it was repairing an old bridge, but the truth of the matter is that it tore down an old wooden bridge, and placed in its stead a new steel structure. It was engaged in the construction of a new bridge as much so as though no other bridge had spanned the river. It would not matter when the original bridge was constructed, whether before or after the enactment of the federal statute, when it undertook to build a new bridge of different construction and different material, it was subject to the provisions of [Section 401].
Thus it may be said that one of the basic factual questions in this case is whether the proposed structure is one of " wood " or one of " steel ". Since this is on motion for a preliminary injunction, the Plaintiffs must show that there is a likelihood that they will prevail on the merits in their contention that the proposed structure is of the latter type.
B. THE PLAINTIFFS HAVE SHOWN A LIKELIHOOD THAT THEY WILL PREVAIL ON THE MERITS UNDER SECTION 401.
As previously stated, the standard for determining if the proposed Locks and Dam 26 is a reconstruction or a rebuilding is whether the proposed structure represents a material change in the character and capacity of the existing structure. The Plaintiffs have adduced sufficient evidence to convince this Court that it is likely that they will prevail on their allegation that the Defendants have violated 33 U.S.C. § 401.
First, the Plaintiffs have clearly shown, and, the Defendants have admitted, that the character and capacity of the proposed Locks and Dam 26 will be substantially increased. The present "practical capacity" of the existing structure is 46.2 million tons.
The proposed structure will accommodate 190 million tons.
While the design of the new structure will be similar to the existing one, the depth and dimensions will be increased to create a greater "practical capacity".
There is, however, a dispute as to the depth of the channel. The Corps maintains that it will be nine feet
whereas other agencies and the Plaintiffs claim that it will be twelve feet.
While this Court is willing to accept the Corps representations, it is cognizant of the fact that the twelve foot channel has been and still is under considerations.
And, as the record reveals, the character of the proposed structure makes it amenable to such a change.
Second, the Plaintiffs have met their burden on the issue of whether this is a singular or systemic rebuilding. This Circuit has refused to accept post hoc rationalizations of agency action and will scrutinize the record to determine its true intention. See, Scientists Inst. For Pub. Info., Inc. v. A.E.C., 156 U.S. App. D.C. 395, 481 F.2d 1079, 1095 (1973). While in its representations to the Congress and in its responses to comments in the Final EIS the Corps rejected the contention that it is undertaking a system-wide improvement project, the record is replete with contrary indications.
In the Final EIS the Corps has conceded that: "Few water resource projects compare in scope and extent with this project, and its construction must be considered a major expenditure of public funds."
The Defendants maintain that this refers only to the proposed Locks and Dam 26. While this is arguable, its meaning is illuminated by the following statement from the Draft EIS:
"There are at present some constraints to the realization of this prediction in that other locks in the system would be overloaded before such tonnages could be reached. Thus, considering the impact of the project under existing conditions -- that is, utilizing the other existing locks and dams in the system -- the tonnages that could be shipped on the upper Mississippi River and Illinois River would be constrained to present capabilities of other locks in the system. To be able to carry the amount of cargo forecast will necessitate alteration or replacement of other locks and dams in the system.
"The construction of replacement Locks and Dam No. 26 will, therefore, create impetus to revise other portions of the system to create the most efficient utilization of the added capacities of Locks and Dam No. 26."