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October 23, 1979


The opinion of the court was delivered by: RICHEY


This case involves the legality of the United States Army Corps of Engineers' ("the Corps") efforts to add a new "step" in the "stairway of the Mississippi." The "stairway" is the series of dams and locks which descend from the headwaters of the Upper Mississippi River and which, together with dams and locks on the Illinois River, comprise the Upper Mississippi River Navigation System; the "step" is Lock and Dam 26, a new dam and a new 1200-foot lock proposed for construction at Alton, Illinois. *fn1" This structure will replace the present edifice which consists of a dam and two smaller locks. It will stand at the crossroads of the entire Inland Waterways System and serve as the gateway to America's breadbasket.


 The history of this case largely concerns the parties' activities in two forums. First, in the courthouse, legal questions were resolved so as to require a trial, and the record of the Court's activity is vital to an understanding of the issues presented by the parties. Second, in the Corps' offices, the documents which rest at the heart of this suit were prepared and issued to the public; familiarity with these documents is equally vital to an understanding of the issues tried. The Court will briefly summarize the record of the parties' efforts in these forums, providing further background details where appropriate.

 A. The Course of This Litigation.

 Commercial navigation on the Upper Mississippi River and the Illinois River is made possible through a series of locks and dams known as the Upper Mississippi River Navigation System. The dams in this system control the depth and flow of the rivers, thereby assuring tow barges of navigable waters; the locks, by filling and emptying with water, carry tows, and other craft, up and down the stairway of water formed by the dams. Presently, on the Upper Mississippi River the waterways system consists of a series of twenty-seven locks and dams, extending from St. Paul, Minnesota to a point just south of the mouth of the Missouri River; on the Illinois River, there are seven locks and dams, from Lockport, Illinois to LaGrange, Illinois. Plaintiffs' complaint concerns perhaps the most vital link in this impressive series of structures the passageway to both the Illinois and Upper Mississippi Rivers. Just fifteen miles south of the juncture of these rivers (and eight miles north of the mouth of the Missouri River) stands Locks and Dam 26. All waterborne commerce shipped between the Upper Mississippi River Navigation System, and the Ohio River, the Lower Mississippi River and the Gulf Intracoastal Waterway must pass through these two locks. Locks and Dam 26, as it now stands, consists of a main lock, which is 600 feet by 110 feet, and an auxiliary lock, 300 feet by 110 feet. Complaining of both the soundness of the dam and the capability of the locks to efficiently handle increasing barge traffic, the Corps has, for the last eleven years, sought to cure these alleged defects by constructing a new lock and dam. Now, with the authorization of Congress, See Act of October 21, 1978, Pub.L. No. 95-502, 92 Stat. 1693 ("Public Law No. 95-502"), the Corps plans to replace this entire structure with a new dam and a single 1200-foot lock located two miles downstream. A brief account of this decade-long effort is helpful to an understanding of this Court's prior decisions.

 The replacement project sought by the Corps was originally recommended in 1968 by the St. Louis District Engineer; this recommendation was for a new dam and two 1200-foot locks two miles downstream of the present structure. A year later, the Board of Engineers for Rivers and Harbors recommended immediate implementation of the plan. The Secretary of the Army, acting according to his perceived authority under section 6 of the Rivers and Harbors Act of 1909, 33 U.S.C. § 5, approved the project and, in fiscal year 1970, Congress appropriated funds for the design of the project.

 On August 6, 1974, three environmental organizations and a host of midwestern railroads filed separate suits in this Court seeking to prevent the initiation of construction on the two-lock project. That same day, Judge Corcoran issued a temporary restraining order prohibiting the letting of bids for the proposed Locks and Dam 26. One month later, this Court issued a preliminary injunction halting all further activity on the project. Atchison, Topeka and Santa Fe Railway Co. v. Callaway, 382 F. Supp. 610 (D.D.C.1974). In issuing the injunction, the Court ruled that the proposed locks and dam were a new structure, rather than a rebuilt one, and as a result, congressional authorization under Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, was a prerequisite to the commencement of the Corps' work. Id. at 616-61F. The Court found a likelihood that plaintiffs' would prevail on their claim that defendants had violated NEPA by not preparing a detailed statement which adequately discussed the systemic impact of the two-lock proposal and reasonable alternatives to the plan. Id. at 620-623.

 After issuance of the injunction, the Corps restudied the original proposal for Locks and Dam 26 and decided to comply with the Court's decree. In August, 1975, the District Engineer in St. Louis, after preparing a draft supplemental EIS and updating the Corps' economic analysis, recommended a project identical in scope to the original plan. The Board of Engineers for Rivers and Harbors, *fn5" however, reviewed this proposal and recommended limiting its scope to a new dam and a single 110-foot by 1200-foot main lock, with provisions for adding a second lock after gathering certain environmental and economic data. In March, 1976, the Chief of Engineers issued his report to the Secretary of the Army substantially adopting the Board's recommendations. Upon receipt of the Chief's recommendation, the Secretary of the Army terminated his approval of the pending two-lock proposal. Finally, on August 4, 1976, the Secretary formally recommended to Congress that it authorize the construction of a replacement dam and 1200-foot lock and that it not authorize a second lock until an interagency study indicated that one should be constructed. "Letter of Transmittal," Final EIS at v. A proposed bill and a final environmental impact statement accompanied the Secretary's recommendation.

 While Congress took up consideration of the Secretary's proposal, the parties renewed their efforts in this Court. In an opinion dated May 2, 1977, the Court found that the Secretary's withdrawal of approval from the Locks and Dam 26 project removed the possibility of harm to plaintiffs; accordingly, it dissolved the outstanding injunction. Atchison, Topeka and Santa Fe Railway Co. v. Callaway, 431 F. Supp. 722, 725 (D.D.C.1977). The Court also reviewed plaintiffs' standing to seek relief while congressional action on the new project was pending. First, the Court recognized a private right of action to enforce the requirement established in section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), that an EIS accompany proposals for legislative action. Id. at 725-729. Second, it held that plaintiffs possessed standing to enforce this right and that their claims presented a justiciable case. Id. at 729-730. Later, the Court directed the parties to address the issue of the proposal before Congress; on November 29, 1977, the Court found that there remained before Congress a "proposal for legislation" by the executive branch with respect to Lock and Dam 26. Thus, the stage was set for continued litigation.

 While the Court was reviewing the legal merits of the parties' contentions, Congress was deliberating the merits of the Secretary's proposal. During the Spring and Summer of 1977, hearings were conducted before the appropriate committees in the House and Senate and the merits of the project were debated on the floor of Congress. See S.Rep.No.95-215, 95th Cong., 1st Sess. (1977); H.R.Rep.No.95-545 pt. 1, 95th Cong., 1st Sess. (1977); 124 Cong.Rec. S18,043-052 (daily ed. Oct. 23, 1978); Id. H12,695-701; Proposed Waterway User Charges and Replacement of Locks and Dam 26: Hearings on S. 712, S. 790 & S. 923 Before the Subcomm. on Water Resources of the Senate Comm. on Environment and Public Works, 95th Cong., 1st Sess. (1977); Replacement of Locks and Dam 26 at Alton, Illinois: Hearings Before the Subcomm. on Water Resources of The House Comm. on Public Works and Transportation, 95th Cong., 1st Sess. (1977); Locks and Dam 26: Hearings on S. 1285, S. 3425 & S. 3506 Before the Subcomm. on Water Resources of the Senate Comm. on Public Works, 94th Cong., 2d Sess. (1976).

 On October 21, 1978, President Carter approved H.R.8533, 95th Cong., 2d Sess. (1978), thereby authorizing the replacement of Locks and Dam 26 with a new dam and 1200-foot lock located two miles downstream from the existing structure; the replacement would cost approximately $ 421 million. Act of October 21, 1978, Pub.L. No. 95-502, § 102(a), 92 Stat. 1695. The new law also instructed the Upper Mississippi River Basin Commission *fn6" to "prepare a comprehensive master plan for the management of the Upper Mississippi River System"; moreover, the law proscribed any "replacement, construction, or rehabilitation" which expands the navigation capacity of the existing locks, dams and channels until the Commission's master plan has been approved by Congress. Id., §§ 101(a) & (i), 92 Stat. 1693 & 1695. In addition, the Act also expressly limited the navigation depth of the channels in the system to nine feet, except where specifically authorized by Congress. Id. § 102(c), 92 Stat. 1695. Thus, having obtained the approval of Congress, the Corps had at last complied with the mandate of 33 U.S.C. § 401, as construed by this Court's original decision in the case. See 382 F. Supp. at 616-61F.

 Plaintiffs responded to the legislation by promptly filing an amended complaint. The Court, in turn, instructed the parties to submit memoranda of law on the effect of Public Law No. 95-502. Defendants moved for summary judgment contending that plaintiffs' NEPA claims had been definitively resolved by Congress. The Court denied this motion, finding that the new law had not repealed NEPA, either by implication or by its express terms. First, because NEPA was essentially a full disclosure law, it served Both the public's and the legislature's need for information; this public interest compelled the continued acknowledgment of a private right of action, even after Congress had passed authorizing legislation. Second, the Court found that the legislative history underlying Public Law No. 95-502 indicated that Congress neither intended its authorization to resolve the adequacy of the Final EIS under NEPA, nor viewed enactment as a reflection of its opinion on that issue. 480 F. Supp. 972 (D.D.C. 1979).

 On the eve of trial, defendants renewed, in a limited fashion, some of the matters discussed in the Order of March 16, 1979. Specifically, defendants sought a ruling on the legitimacy of plaintiffs' claims under the Water Resources Planning Act of 1965, 42 U.S.C. §§ 1962 Et seq., the regulations promulgated pursuant to that Act, 33 C.F.R. pts. 290-295 (1978), and several other statutes and regulations. *fn7" In ruling on this motion, the Court essentially found that Congress intended NEPA to serve a much broader purpose than the other statutes upon which plaintiffs based their claims. While the Water Resources Planning Act of 1965 and the River and Harbor Act of 1970 were both intended primarily to assist congressional review, NEPA was designed to aid legislative as well as public review. Hence, the Court concluded that a private right of action to enforce compliance with NEPA survived congressional authorization; yet, once Congress had spoken, claims under other statutes could be extinguished. Accordingly, the Court limited the case to plaintiffs' claims under NEPA and under defendants' post-authorization regulations. 480 F. Supp. 972 (D.D.C. 1979). The issues having been narrowed, the case was at last ready for trial.

 Before discussing the trial, one final point must be clarified. Confusion regarding the import of the Court's September 10, 1979 Order 480 F. Supp. 972 arose out of the parties' differences over the precise definition of the decision under review. *fn8" Plaintiffs evidently assumed defendants' post-authorization decision to build, See part III Infra, was still subject to review to determine compliance with the same substantive regulations which were held not to be a basis for review of a legislatively approved proposal. Plaintiffs, however, have neither suggested, Nor proven, see part VG Infra, the occurrence of any material change in the eleven months since authorization by Congress. Under such circumstances, it would be pure legerdemain for the Court to review as a "post-authorization agency decision" the same matters which it has held beyond its review as a result of legislative action Before the agency decision. Accordingly, the Court has not reviewed plaintiffs' claim that defendants' post-authorization decision to build violates the Corps' substantive cost/benefit regulations, 33 C.F.R. pts. 290-295. The Court finds, as a matter of fact, that there have been no material changes in circumstance since Congress acted and it holds, as a matter of law, that absent such changes, a valid claim has not been stated.

 B. The Work of the Corps.

 In response to this Court's decision in 1974, the Corps renewed its efforts to comply with NEPA and, in the process, created a host of documents. The Court provides the following chronology of these documents.

 After publication of the FEIS, the Corps issued two other documents which are critical to this proceeding. First, in January, 1977, it published the Supplemental Economic Data, parts I and II ("SED") (DX 59). The SED basically updates the FER with data provided by research initiated in response to comments upon the FER. Second, on May 17, 1979, the St. Louis District of the Corps issued a document entitled Supplement No. 2 to Design Memorandum No. 2, General Design Memorandum ("GDM Supp. No. 2") (DX 61); this publication was intended to satisfy the requirements of the Corps' post-authorization regulations.


 On September 10, 1979, the Court commenced a five-day trial. As further background to its findings of fact and conclusions of law, the Court provides the following summary of the issues tried and the evidence presented.

 A. Issues.

 At trial, this Court was confronted with two basic issues: 1) whether defendants complied with NEPA, and 2) whether defendants complied with their post-authorization regulations. The resolution of each of these issues requires an analysis of numerous matters.

 The question of the meaning and significance of defendants' post-authorization regulations are matters of vital importance. Plaintiffs' case in chief, at its heart, rests on the assumption that there exists a post-authorization decision by the Corps of Engineers to build or not to build the approved project. Plaintiffs believe that this is the decision which the Court must review. Defendants assert that the final decision on the project was made by Congress and the Chief Executive in Public Law No. 95-502, § 102(a), 92 Stat. 1695 (1978). Thus, at the outset, this Court must determine whether the Corps ever made a decision to build the new lock and dam.

 Assuming the existence of an agency decision subject to judicial review, plaintiffs allege both procedural and substantive defects in the decision-making process. First, defendants' failure to conduct a public meeting, with due notice for public comment, is alleged to violate the Corps' own regulations. Second, defendants' omission of certain "losses" from its cost/benefits analysis is alleged to violate the substantive requirements of the Corps' regulations. The neglected "losses" are: 1) the future costs of maintaining the entire Upper Mississippi Navigation System; 2) the projected losses to railroads which compete directly with river users; 3) the losses resulting from delays at upstream locks; and 4) the systemic environmental damage caused by increased use of the two rivers. For the reasons set forth in the concluding paragraph of part IA Supra, the Court will not review this second allegation. See also part VG Infra.

  With respect to the question of defendants' compliance with NEPA, plaintiffs contend, Inter alia, that the record is inadequate for judicial review, that three current proposals were not treated in the FEIS, and that several alternatives did not receive adequate consideration. Specifically, plaintiffs submit that the record is inadequate because defendants have relied upon "secret" data. Plaintiffs further argue that the FEIS should analyze the systemic impact of expanding the capacity of upstream locks, and also evaluate the environmental effects of alleged proposals to construct duplicate locks at certain dams along the Illinois River and to dredge a twelve-foot channel. Three alternatives to the proposed project, plaintiffs also submit, were inadequately evaluated; these possibilities are: 1) low-cost rehabilitation of the present structure; 2) investment in alternative transportation modes; and 3) more efficient methods of congestion control. Plaintiffs' environmental concerns center around defendants' purported failure to properly investigate the upstream biological impacts of the varying tonnages which move, or are projected to move, through the proposed lock and dam. Finally, plaintiffs argue that defendants' substantive decision regarding the costs and benefits of Lock and Dam 26 is arbitrary, capricious and in violation of section 101(b) of NEPA, 42 U.S.C. § 4331(b), because they neglected to weigh three factors: 1) system-wide maintenance costs; 2) revenue losses to railroads; and 3) alleged growth in traffic on the Illinois River.

 B. The Evidence Offered at Trial.

 At trial, plaintiffs presented their case through six expert witnesses, excerpts of depositions and hundreds of documentary exhibits. The plaintiffs' experts served not merely as conduits for the facts contained in the voluminous exhibits, but also as exponents of the conclusions which plaintiffs sought to have the Court draw from those facts.

 Robert Haveman, a Professor of Economics at the University of Wisconsin-Madison, testified that review of the Corps' calculations was marred by non-disclosure of supposedly "secret" data. Dr. Haveman also stated that the Corps had failed to assess the systemic impacts of the proposed project. Relying solely on Corps statistics, he indicated that the Illinois River locks lacked the capacity to handle the increased traffic put through a 1200-foot lock at Alton and that this increase would lead to congestion and delay losses on the Illinois. As a result of this congestion, Dr. Haveman concluded that traffic would shift to the Mississippi River, causing congestion there and increasing the pressure to expand the locks on that river. He also noted that the Corps had neglected to evaluate the environmental impacts of either congestion on the Illinois or the shift in traffic to the Mississippi. Finally, Dr. Haveman stated that his findings indicated that costs for the project outweighed benefits. Plaintiffs' second expert, Dr. Joseph Carroll, a transportation economist with the Pennsylvania Transportation Institute, reiterated Dr. Haveman's testimony. He stated that, here, an analysis of All traffic internal as well as Lock and Dam 26 on the Illinois was necessary to determine the impact of the project. He also testified that tonnage passing through Lock and Dam 26 would increase beyond Corps estimates due to larger tows.

 Two biological experts, Drs. Thomas Claflin and Richard Sparks, speculated on the potential impact of tows on the ecology of the two rivers. Dr. Claflin, a Professor of Biology and Director of the River Studies Center, explained the project's environmental impact upon the Upper Mississippi River. He stated that the river was a fragile ecosystem and that a very slight change could conceivably trigger events leading to eutrophication. Much of his testimony was dedicated to explaining the multitude of ways that the passage of a tow could potentially alter the surrounding ecosystem. Dr. Sparks focused his analysis on the Illinois River and reiterated the conclusions of his colleague.

 Throughout the testimony of these experts, their opinions and conclusions were regularly compared to the contents of the FEIS and to defendants' post-authorization regulations. In this manner, the alleged shortcomings of the Corps' work were presented to the Court.

 Defendants responded by calling four witnesses to the stand. Colonel Leon McKinney, who had been District Engineer of the St. Louis District prior to his retirement in January, 1979, was one of the individuals responsible for supervising the preparation of the Lock and Dam 26 proposal. He testified regarding the inadequacy of the existing structures, the need for their replacement and, on cross-examination, the Corps' pre- and post-authorization procedures. Mr. Homer B. Willis, former Chief of the Engineering Division for the Civil Works Director in the Corps' Chief of Engineers Office, explained the engineering aspects of the FEIS. Dr. Daryl Simons, a river mechanics expert with the Engineering Research Center at Colorado State University, testified regarding the physical movement of sediment into backwater areas. His testimony did not touch upon the biological impact of that sediment. Finally, Mr. Robert M. Daniel, Chief Economist in ...

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