resulted from agency actions which directly affected the agency evaluation of a project and ultimately whether such project was recommended to Congress for construction. Id., at 1003-04. The court reasoned that projects likely to be recommended were likely to be constructed, and that it would be incorrect to attribute resulting injury to Congress' action, thereby precluding judicial review of the agency process.
The challenge in this case concerns the lawfulness of procedural changes which govern the planning for all executive branch water resource proposals, with widespread threat of harm alleged. In the context of reviewing a particular project under NEPA, there will be no judicial review of these administrative actions which directly affect the type of projects which are recommended to Congress for construction. We believe that the analysis of EDF v. Marsh applies to this case and that the plaintiffs allegations of injury to aesthetic and other non-economic interests satisfy the requirement of injury in fact. Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); United States v. SCRAP, 412 U.S. 669, 686, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973).
Defendants also argue that plaintiffs' interests are not arguably within the zone of interests to be protected by the WRPA. Despite the agency history of requiring detailed environmental quality evaluations as part of the PS&P and earlier WRC guidelines, defendants maintain that the WRPA never required such evaluations. Rather, they argue that the principal purpose of the WRPA was to coordinate national water planning and resolve interagency conflicts. Defendants point out that the D.C. Circuit Court of Appeals has stated that Congress is the intended beneficiary of the WRPA, and conclude that plaintiffs therefore lack standing to challenge the WRC. Izaak Walton v. Marsh, 210 U.S. App. D.C. 233, 655 F.2d 346 (D.C.Cir.), cert. denied, 454 U.S. 1092, 102 S. Ct. 657, 70 L. Ed. 2d 630 (1981).
While the first of these arguments may aid defendants on the merits of plaintiffs' WRPA claim, and the second might suffice to deny plaintiffs an implied private right of action under the WRPA, neither argument defeats plaintiffs' claim that planning for the protection of environmental interests falls arguably within the zone of interests to be protected by the WRPA. Both the President and the WRC have historically read the WRPA mandate to include environmental quality objectives. The 1965 policy statement of the WRPA states that it is Congress' intent to "encourage the conservation . . . of water and related resources." Given these facts, we have no difficulty concluding that the plaintiffs' claimed injury falls "arguably" within the zone of interests to be protected by the WRPA and that plaintiffs have standing to challenge defendants' actions as being arbitrary and capricious under the APA.
Having concluded that plaintiffs have standing to sue under the APA, we must also consider defendants' argument that the repeal of the PS&P and the issuance of the P&G are within the discretionary authority of the WRC and not subject to judicial review. Defendants rely for this point on Izaak Walton, which held that federal courts do not have jurisdiction to review particular cost-benefit analyses prepared for the benefit of Congress once Congress has acted on the agency proposal. 655 F.2d at 357-58. Defendants reason that if these analyses are not subject to review, then the procedures governing the preparation of analyses must also be beyond review.
We are not satisfied that Izaak Walton reaches the particular facts of this case. It is true that the court did find that the purpose of the WRPA was to assist Congress in evaluating water projects, but it focused on the fact that Congress had already reviewed the analysis at issue, in deciding that the court should not thereafter interfere. More generally, the court recognized that "determination of economic costs and benefits is a matter of legislative judgment and that, since the analyses are performed for Congress, the legislative branch rather than the judiciary is best suited to review their adequacy." Id., at 358. We do not disagree with this broad proposition. Thus, it is clear that the Court of Appeals, in ruling that individual cost benefit analyses are not subject to review after Congress has acted, did not address whether the WRC rulemaking and repeal process, prior to action by Congress, is subject to review under the APA. See Motor Vehicle Mfrs. Assn v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).
The APA exception to the general rule of reviewability for agency action "committed to agency discretion by law" is extremely narrow. The Congressional intent to preclude review must be demonstrated by "clear and convincing evidence." Barlow v. Collins, 397 U.S. 159, 166-67, 25 L. Ed. 2d 192, 90 S. Ct. 832 (1970). In our view, defendants have failed to meet this burden.
Finally, defendants argue that plaintiffs' claims under NEPA are not ripe for review because only concrete project proposals are susceptible to judicial review for compliance with NEPA. Defendants rely principally on the Supreme Court's discussion in Kleppe v. Sierra Club, 427 U.S. 390, 49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976) to the effect that courts should not require the preparation of impact statements prior to an agency's making a report or recommendation on a proposal for action with respect to a particular project. 427 U.S. 390 at 406. The court's concern in Kleppe was directed at the possibility of judicial interference in the day to day decisionmaking process of agencies, by prematurely requiring compliance with NEPA.
In this case, however, there is no dispute that in repealing the PS&G and issuing the P&G the WRC has taken "final agency action." NEPA requires that federal agencies prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). In addition, the WRC supplemental NEPA procedures, 18 C.F.R. § 707 (1984), state that the promulgation of significant changes in the principles, standards and procedures for planning water and related land resources is an action requiring an environmental assessment or environmental impact statement.
In fact, an environmental assessment was prepared in this case and it is the adequacy of this assessment as well as the WRC decision not to prepare an EIS that the plaintiffs challenge. Clearly, the case is ripe for decision. Judicial review of these WRC actions under NEPA will not "hazard unnecessary disruption." 427 U.S. at 406 n.15.
For the foregoing reasons, we conclude that plaintiffs have standing to bring this action, that the matter is subject to judicial review and is ripe for adjudication.
An order consistent with this opinion has been entered this day.
John H. Pratt, United States District Judge.