The opinion of the court was delivered by: RICHEY
UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY
This case is before the Court on defendants' and defendant-intervenor's motions to dissolve the preliminary injunction and to dismiss. The Court also has before it plaintiffs' motion for summary judgment which, inter alia (see note 3 infra), seeks a declaratory judgment that the Corps of Engineers' final environmental impact statement fails to comply with the requirements of section 102(2)(C) of the National Environmental Policy Act [NEPA], 42 U.S.C. § 4332(2)(C). As hereinafter set forth, the Court concludes that since construction on the project here in issue is neither imminent nor a reasonably foreseeable likelihood, the Court's outstanding preliminary injunction is appropriately dissolved, without prejudice to a renewed request by plaintiffs for the same or similar relief in the future when and if such relief becomes appropriate. The Court further concludes that plaintiffs have a right of action and standing to enforce section 102(2)(C)'s EIS requirement for legislative proposals, and the "effectiveness" of the declaratory relief sought by plaintiffs, if granted by the Court, is sufficient to render this case justiciable. Accordingly, the Court will grant the motions to dissolve the preliminary injunction, but will deny the motions to dismiss and will therefore direct the defendants and defendant-intervenors to respond to plaintiffs' pending motion for summary judgment.
Subsequent to the issuance of that preliminary injunction, the defendants restudied the original proposal for Locks and Dam 26. In August 1975, the District Engineer in St. Louis completed a draft supplemental EIS and an updated economic analysis. He recommended that the present Locks and Dam 26 be replaced with a new dam containing two locks, each 110 feet wide and 1,200 feet long, at a site approximately two miles downstream from the present location. After the Lower Mississippi Valley Division Engineer concurred, the Chief of Engineers asked the Board of Engineers for Rivers and Harbors to review all actions associated with Locks and Dam 26. The Board recommended, inter alia :
(1) That approval be obtained from Congress to proceed immediately toward construction of a new dam and 110-foot by 1,200-foot main lock at a location approximately two miles downstream of the existing Locks and Dam 26.
(2) That the operational need and economic justification of a second lock be recognized at this time, and that the design and construction of the dam provide for future expansion.
(3) That . . . additional economic and environmental studies . . . be undertaken immediately, and that the findings and recommendations concerning a second lock be forwarded to Congress for approval.
Report of Board of Engineers for Rivers and Harbors, at vi (February 1976).
On March 15, 1976, the Chief of Engineers issued his report to the Secretary of the Army with regard to Locks and Dam 26. This report substantially adopted the recommendations of the Board of Engineers and was accompanied by a draft EIS. The revised draft EIS and an economic formulation were then circulated to interested states, federal agencies, and others for comment.
On April 22, 1976, after receiving the report of the Chief of Engineers, Secretary of the Army Martin R. Hoffman concluded that in light of the
proposed report recommending Congressional authorization of a different project, continuation of the prior approval is unnecessary and also may be the cause of some misinterpretation. Accordingly, I hereby terminate, effective this date, the above cited approval to construct the replacement project for Locks and Dam 26.
I await [the] final report on the replacement project and the results of the full review it will have undergone. I have informed the appropriate Committee Chairman of this action and of my intention to submit my recommendations, whatever they may be, to Congress for its consideration.
Memorandum from the Secretary of the Army to the Chief of Engineers (April 22, 1976).
Finally, on August 24, 1976, Secretary Hoffman formally recommended to Congress in a "Letter of Transmittal" that it "authorize the construction of a replacement dam and 1200-foot lock" and that it not authorize an auxiliary lock "until such time as the interagency study indicates that such lock should be constructed." Along with the Letter of Transmittal, Secretary Hoffman forwarded to Congress ...