# Sierra Club v. Froehlke

> District Court, S.D. Texas · February 16, 1973 · 359 F. Supp. 1289

URL: https://www.frixlaw.com/law-library/cases/1471484

## Case

- **Full name:** SIERRA CLUB Et Al., Plaintiffs, v. Robert F. FROEHLKE, Secretary of the Army, Et Al., Defendants, Trinity River Authority of Texas Et Al., Defendants by Intervention
- **Court:** District Court, S.D. Texas
- **Decided:** February 16, 1973
- **Citations:** 359 F. Supp. 1289; 5 ERC 1033; 3 Envtl. L. Rep. (Envtl. Law Inst.) 20248; 5 ERC (BNA) 1033; 1973 U.S. Dist. LEXIS 14888
- **Precedential status:** Published
- **Opinion:** Opinion by Bue
- **Judges:** Bue
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Sierra Club v. Howard H. Callaway, Secretary of the Army, Trinity River Authority of Texas, Intervenors-Appellants, 499 F.2d 982 (1974).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1471484

## Opinion text

MEMORANDUM AND ORDER
CARL O. BUE, Jr., District Judge.
A.
1.
INTRODUCTION
The complexity of this case and the substantial record
1
submitted for review
*1299
have caused this Court great concern. The geographical magnitude of the projects and the financial investment involved are very substantial. The Court has closely studied the entire record, paying particular attention to the various studies and congressional hearings. These include three studies pertaining to what this Court shall identify as the Trinity Project, described in detail hereafter, which were published in 1941,
2
1965,
3
and most recently in 1968.
4
Sev
*1300
eral relate specifically to what this Court will identify as the Wallisville Project, including one published in 1961,
5
the general design memorandum
6
*1302
and recreational study
7
published in 1965, and a supplement published in 1969.
8
of central importance will be the environmental impact statement for the Wallisville Project, dated December, 1971.
9
The congressional hearings to which this Court has paid closest attention include those relating to appropriations for public works projects for the fiscal years 1966,
10
1967,
11
1968,
12
1969,
13
1970,
14
1971,
15
1972,
16
and 1978,
17
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2.
THE PARTIES AND ISSUES
a.
Description of Parties
This case is brought as a class action by five organizations and two individuals on behalf of themselves and a class who have enjoyed or otherwise derived benefit from the Trinity River, Trinity Bay, and surrounding areas in their natural state and who wish to preserve and enhance such areas in their natural state and beauty. Four of the organizations include the Sierra Club, the Houston Audubon Society, the Houston Sportsmens Club and the Environmental Protection Fund. In general, each alleges a membership in Texas who use and enjoy the waters of the Trinity River, Trinity Bay, and surrounding areas. Collectively, they exist for purposes of promoting conservation and proper management of land, water and wildlife resources. The fifth organization, the Texas Shrimp Association, is composed of members primarily engaged in commercial shrimping in areas of the Trinity River, Trinity Bay, and related localities. The organization exists for the purpose, among others, of preserving the shrimp nursery grounds in their natural state. The two named individuals, Charles L. Peting and Eugene A. Dutton, live in or near the affected areas where they have hunted, trapped, fished and shrimped in the Trinity River and Trinity Bay areas, and they wish to preserve these areas in their natural state. The complaint, taken as a whole, alleges that the failure of the defendants to abide by the applicable law has caused irreparable harm and damage to plaintiffs who have no adequate remedy at law.
Named as defendants in the complaint are Robert F. Froehlke, Secretary of the Army, Lt. Gen. Frederick J. Clark, Chief of Engineers of the Army Corps of Engineers, and Col. Nolañ C. Rhodes, District Engineer of the Army Corps of Engineers. All defendants, collectively referred to as the Corps by this Court, are sued in their official capacities. For purposes of this decision, the Court requested, and the Corps supplied, a simplified chain-of-eommand for the Corps of Engineers. This is included in the footnotes.
18
Another party appear
*1308
ing as a defendant, by intervention, is the Trinity River Authority of Texas (hereinafter referred to as the TRA). The TRA is a governmental agency of the State of Texas which was created as a conservation and reclamation district pursuant to statute.
19
The duty of the TRA is to prepare a master plan for the maximum development of the soil and water resources of the entire Trinity River watershed, including plans for the complete utilization, for all economically beneficial purposes, of the water resources of the watershed. The TRA is empowered to engage in water supply, flood control, pollution control, sewerage transportation and treatment, navigation, soil conservation and other related activities. Both the Wallisville and Trinity River Navigation Projects are located within the territory over which the TRA has authority. The record indicates that the TRA has been active in promoting and coordinating planning and construction activities related to both of these projects as well as several others. The City of Houston, Texas, defendant by intervention, is a municipal corporation concerned with the conveyance, transportation and distribution of water for and on behalf of the City. Much of its water sources presently come from the Trinity River, and it has contracted with the federal government to store and impound water in the reservoir being created by the Wallisville Project. The Coastal Industrial Water Authority of Texas, which intervened jointly with the City of Houston, is a governmental agency of the State of Texas created as a conservation and reclamation district and authorized to sell, transport and deliver water to customers. Additional defendants are the Cities of Dallas and Fort Worth, Texas, both of which are being allowed to intervene as defendants by this opinion,
20
as they have substantial interests in flood control and navigational aspects of the Trinity Projects.
b.
Description of Projects
The controversy in this case focuses upon a comprehensive development program of the Trinity River Basin which includes provisions for navigation, flood control, water conservation and recreation.
21
This is being accomplished in part by the State of Texas and in part by the Corps of Engineers, both working together. Part of this development program is the Trinity Project which provides for a multiple purpose channel 12 x 200 feet in dimensions extending about 363 miles from the Houston Ship Channel in Galveston Bay, near the Gulf of Mexico, to Fort Worth, Texas. The channel serves both navigation and flood control purposes and will consist of sixteen navigation dams and twenty navigation locks to overcome a total lift of 496 feet. The channel will follow an existing navigation channel to Liberty, Texas, and pass through the pools of Wallisville, Livingston and Tennessee Colony reservoirs. The existing Dallas floodway will be enlarged, and part of the Trinity River and tributary channels in the vicinity of Dallas will be realigned for flood control. This project also entails other flood control features, construction of about 98 miles of 84 inch pipeline from Tennessee Colony Lake to Benbrook Lake, and alterations to existing bridges and utilities to provide navigation clearances. Future plans include a widening of the channel to 250 feet and the adding of duplicate locks with pumping facilities to recirculate water. Provisions are also made for water quality control, recreation and redevelopment.
22
The latest projected appropri
*1309
ation estímate for the total Trinity project to completion is $1,356,000,000.
23
The magnitude of this project may be seen by considering that the total civil works budget for the Corps of Engineers in the entire country for fiscal year 1973 is $1,844,591,000
24
According to the record, with the exception of Wallisville, no construction work has begun on any of the specified components of the Trinity Project, although engineering and environmental studies and evaluations are underway.
*1307
*1309
The focal point of this litigation is the Wallisville Project. Located at the mouth of the Trinity River, this project consists of a low dam 39,000 feet in length, a navigation lock compatible with the dimensions indicated for the Trinity Project’s navigation features and ancillary facilities needed for operation of the lock. The structural facilities will occupy approximately 80 acres of land, while the reservoir contained behind the dam will, at its initial maximum operating level of four feet, cover approximately 19,700 acres. This project also entails enlarging an existing 6 foot deep by 100 foot wide navigation channel from the reservoir to Liberty, Texas, a distance of approximately twelve miles, as well as developing recreational facilities.
25
The total estimated appropriation cost of the Wallisville Project is $28,800,000. As of December 31, 1972, construction on the dam and lock is represented to be approximately 87 percent complete with the overall project development being approximately 72 percent complete.
The project territory for the Trinity Project includes wooded lands, pasture and crop lands with the majority of the area being characterized as agricultural.
26
The Wallisville Project will submerge substantial amounts of woodands and marshands which provide natural settings for a variety of wildlife, waterfowl and fish, some of which are referred to as rare and endangered species.
The plaintiffs, in their complaint, point out that the defendant Army Corps of Engineers intends to cut out 184 of the natural crooks and bends and convert the Trinity River into a generally straight barge canal 370 miles long, 12 feet deep and 250 feet wide with additional footage on either side. The plaintiffs continue by alleging the following :
Plaintiffs would show that the construction of the Trinity Project will destroy thousands of acres of bottom-land and hundreds of thousands of trees between Fort Worth-Dallas and the Gulf of Mexico. Numerous game, fish and other wildlife will lose their habitat and perish. Industrial and population growth will be thereby encouraged in over-developed areas with resulting pollution and urban problems. Construction of the projected barge canal across Texas will concentrate heavy industry along its banks which, when considered with the trafficking of barges and boats up and down the canal, shall reduce the free-flowing Trinity River to a series of placid pools with polluted and stagnant water.
Plaintiffs also state that the Wallisville Project will cause substantial harm to the saltwater commercial fishing industry in that the reservoir will convert to a freshwater condition substantial acres of saltwater marshlands that are breed
*1310
ing areas of commercial species. Agencies generally concurring with the plaintiffs’ position regarding environmental aspects of the Wallisville Project include the Environmental Protection Agency
(EPA)
27
the Bureau of Sport Fisheries and Wildlife, U. S. Department of the Interior,
28
the National Marine Fisheries Service,
29
and the Texas Department of Parks and Wildlife.
30
The environmental impact of the Trinity Project has not yet been adequately measured; thus the various positions with respect to specific environmental impacts are not as fully developed in this record as they are with respect to the Wallisville Project.
Perhaps a document appearing in the record best expresses the position of the Corps with respect to water resource projects and their related environmental problems. It provides in part:
It has long been the policy of the Corps to coordinate its water resource projects with all local, state, and Federal agencies concerned with recreational and fish and wildlife resources located in each project area. Since the passage of the National Environmental Policy Act of 1969 ( Public Law No. 91-190 ), the Corps has been required to issue a formal statement of the impact of any Corps project on the natural environment. The Environmental Impact Statement for the. Trinity River study is presently scheduled for completion in 1972. Until the environmental survey is made by qualified personnel and an impact statement prepared and reviewed by all of the local, state, and Federal agencies involved in evaluating the relative need and value of these resources, a complete assessment of the project’s impact on the environment cannot be made. A full assessment of the relative value of land and water resources in terms of a positive and negative effect of the project on the natural environment and the ecological balance within the project area will be included in the statement. (Some persons) subscribe to the often expressed belief that all Corps projects, per se, destroy most environmental values, including land, water, and fish and wildlife resources. A project of this size and scope will open large recreation areas to the general public for such activities as: boating, canoeing, sailing, hiking, fishing, scenic driving, etc.
With the Federal Government’s participation in this project, large areas of land will come under the Federal control in the form of operation and maintenance easements. This control will afford the- Federal Government the opportunity to manage development and public use along the waterway in a manner consistent with the intent of Congress in Public Law No. 91-190. Recreational type activities such as those previously mentioned would be encouraged in the controlled areas and facilities to accommodate public access and use will be provided. Thus, the land use potential of the area with respect to preserving and enhancing environmental qualities will be maximized. While the project plan calls for widening, deepening, and straightening the Trinity River, it also contemplates leaving the River
*1311
cutoffs and oxbows in their natural state, which will provide undisturbed spawning, nursery, and foraging areas for the preservation of the species of fish and wildlife native to the river and adjoining land areas.
Should the Federal investment in this project be eliminated, there is no assurance that any private or Federal funds will be expended to preserve the natural setting of the Trinity River. On the contrary, land owners may find it profitable to sell their land to private interests who may develop the land with little or no consideration to the preservation of the natural environment or to the ecological balance of the area, strictly to maximize their return from the land. It might be added that the Federal Government is the prime sponsor of wildlife preserves and national forest areas, which provide significant contributions toward the preservation of our natural environment.
31
c.
Description of Issues
The plaintiffs seek a declaration that the defendants are proceeding in violation of law in that they have exceeded their authority by not complying with the requirements of the National Environmental Policy Act of 1969 (NEPA) 42 U.S.C.A. § 4321 et seq., which became effective January 1, 1970. The plaintiffs contend that the Wallisville Project is, in reality, a part of the Trinity Project, although separately funded by Congress, and that the Corps has begun construction at Wallisville without first preparing an impact statement as to the Trinity. In the alternative, the plaintiffs contend that the environmental impact statement already prepared for the Wallisville Project is nevertheless deficient under NEPA’s requirements for a full disclosure. The Corps responds that the projects are separate, although compatible, that an impact statement now in preparation for the Trinity Project will be completed prior to the initiation of construction on that project, and that the Wallisville Project impact statement is legally sufficient. The Corps has also raised ancillary issues pertaining to legal standing to sue, subject matter jurisdiction and personal jurisdiction.
The case is before this Court on plaintiffs’ motion for summary judgment seeking to enjoin the named defendants from constructing or causing the construction of the entire Trinity Project of which Wallisville is a part unless and until they comply with the National Environmental Policy Act. Alternatively, the plaintiffs seek similar injunctive relief with respect to the Wallisville Project alone until the standards of NEPA are met. In December, 1972, the defendant Corps of Engineers also filed a motion for summary judgment, alleging that there is substantial evidence in the record reflecting that the named officials have in all respects complied with the provisions of NEPA.
B.
HISTORY AND GENERAL BACKGROUND
1.
THE TRINITY RIVER BASIN PROJECTS
A comparison of the recited purposes and descriptions of the Trinity and Wallisville Projects, as stated by the Corps of Engineers, would appear to raise questions as to the Corps’ contention that the projects should be regarded as separate and distinct, at least for envi
*1312
ronmental purposes. In the 1968 study, the Corps of Engineers reported to Congress that the Trinity Project envisaged several aspects, the navigation features of which included the lock and reservoir of Wallisville.
32
The environmental impact statement reports the primary function of the Wallisville Project as being a bar to saltwater intrusion accompanying enlargement of the navigation channel to Liberty, Texas, and as serving as the first lock and dam in the Trinity system, when constructed.
33
Because of the genuine difficulties encountered in assessing this problem and the environmental implications raised by the National Environmental Policy Act, this Court has felt compelled to probe behind the outward appearances of these projects to determine as equitably as possible from this extensive record what the facts are and thus what legal consequences flow from such a determination. For this reason, an inquiry into the history and evolution of these projects is beneficial.
Navigation of the Trinity River is known to have first received federal assistance at about the time of the Civil War, ultimately extending up some 300 miles with limited success. In 1902 a major federal project was undertaken, anticipating a four foot channel with 37 locks and dams for utilization of water in the upper reaches of the river for continuous navigation. Between 1902 and 1916 various Congressional acts authorized the individual construction of various locks and dams as part of the overall project; nevertheless, the project was abandoned by Congress in 1922, except for the reach from the mouth of the Trinity to Liberty, Texas, because it was too difficult to maintain open river navigation. Even the Liberty channel was later suspended in 1930, for lack of commerce. Local interests thereafter pressured Congress to reopen the Liberty channel which resulted in a limited allocation of funds in 1940.
In 1941 the Army Corps of Engineers published the first major study of the Trinity River Basin, analyzing the needs for flood control, navigation, water conservation, and allied purposes.
34
This plan, similar to the 1902 concept, contemplated a 9 foot deep by 150 foot wide channel, 26 locks, sufficient dams and reservoirs to store the water necessary for navigation, plus modification of 43 bridges and 22 pipelines to permit navigation. By straightening the river channel through cutoffs, the route would be reduced approximately 110 miles.
35
Because the navigation aspects were found to be economically unjustified, the Corps recommended approval of the plan as a whole, postponing construction beyond Liberty until additional justification arose.
36
In 1944 and again in 1945 the House Committee on Rivers and Harbors sought to have a restudy made,
37
but it was unable to gain sufficient congres
*1313
sional support. In 1956 a major drought caused extensive saltwater intrusion and damage to rice crops, causing local interests to construct a temporary dam on the river.
38
Being at sea level in its lower reaches, the Trinity and its constructed navigation channels allow saltwater at times to penetrate upstream despite the natural flow of the river. Periodic influences such as high tides, seasonal changes, low river flow and droughts increase the likelihood of intrusion.
39
This situation apparently spurred the adoption of a restudy resolution by the Senate Committee on Public Works in 1958,
40
which Congress acted upon favorably.
41
Under this Congressional authorization, which directed the Secretary of the Army to cause a survey of the “Trinity River, Texas”, the Corps authorized an interim report survey focusing upon “the saltwater aspect of the authorized navigation project for the preservation of the quality of water available for irrigation.”
42
The then new Corps of Engineers’ Southwest Division Engineer, Brigadier General William Whipple, was quoted in 1958 as stating that the study of the Trinity River, as a whole, would be given top priority. Discussing the past history of efforts to make the river navigable, he stated that a 1945 attempt to open a channel from Galveston Bay to Liberty was a mistake. It had been found that canalizing the river caused saltwater to intrude inland, thereby disrupting irrigation among the rice growers. While some of the historic problems were attributable to lack of interest, lack of funds, and the two World Wars, General Whipple also attributed much of it to bad planning. His recommendation was a comprehensive study of the entire Trinity River Basin with a view towards development over the next 40 to 50 years
43
The studies of the saltwater intrusion problem revealed that much of it was directly attributable to navigation efforts. It had been greatly increased, for example, when a navigation channel to Houston, Texas, removed the natural barriers restricting the inward flow of seawater.
44
It was so identified by local resi
*1314
dents who registered many complaints.
45
The Corps reported to Congress that the Anahuac Channel, a navigation channel located in Trinity Bay, “was not extended into the Trinity River because of saltwater intrusion problems.”
46
In various letters to Texas Congressmen, the Corps described the “origin” of the Wallisville Project as stemming from the need for salinity control necessitated by the navigation project associated with the Trinity Project.
47
The Environmental Protection Agency, to which an early draft of the Wallisville impact statement was submitted, reported in 1971:
The statement that the alleviation of the saltwater intrusion problem will permit the extension of the authorized navigational improvements upstream should be elaborated. It should be made clear that the prevention of saltwater intrusion up the Trinity River by construction of the lock and dam would permit the extension of navigation channel upstream without a concurrent increase of salt intrusion. This project is the key part of the total development of the Trinity River Basin, especially the navigational aspects.
48
As stated previously, the Wallisville impact statement notes that the primary function of the Wallisville Project is a saltwater barrier to aid navigation.
49
While the saltwater studies were underway, local entities were interested in possibly developing water storage capabilities in conjunction with this barrier.
50
In September, 1959, the City of Houston and the Trinity River Authority executed an agreement regarding watér usage to be obtained from the Wallisville Project. It was agreed that their usage would be “in a manner which will not constitute a deterrent to navigation.” The State of Texas water permit which was issued included a similar restriction. It provided that water usage was to be:
Subordinate to the present and future use and reuse for navigation purposes of the return flows from the metropolitan areas of Dallas and Fort Worth in their natural flowing state and by impoundment in pools created by locks and appurtenances within the river and navigation channels; and further, such return flows shall be permitted to pass through the (Wallisville) reservoir authorized herein to the extent necessary to provide navigation below said reservoir and the rights hereby acquired shall be subordinate to such uses.
51
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Following completion of the studies, the Corps recommended to Congress in 1961 that a saltwater barrier reservoir be constructed near the mouth of the Trinity River. It was anticipated that the findings of the studies would be incorporated in the pendinig comprehensive review of reports being undertaken on the Trinity River and tributaries, and that the project would also serve a function in an integrated water supply plan.
52
Congress approved the Corps’ recommendation.
53
A location at river mile 3.9 was selected because of “site limitations” and because it was apparently viewed as the most suitable location for meeting the water resource needs of the area.
54
Although the record is not clear, it appears that numerous projects were funded separately for budgetary reasons, administrative manageability or because of some “urgent” local problem. Nevertheless, these various projects, including Wallisville, Aubrey and Lakeview Lakes, existing navigation channels, and the high-level bridges, were included and considered as being part of the Trinity River comprehensive development program.
55
In March, 1963, the restudy of the Trinity River and tributaries was completed. Following its review process through the Corps’ chain-of-eommand, the Board of Engineers recommended that the development plans be coordinated with the Wallisville Project and that the navigational features be conditionally approved, subject to later studies indicating economic justification. The Chief of Engineers concurred, recommending that navigation construction be deferred until further economic studies warranted requesting the funds from Congress.
56
Congress conditionally ap
*1316
proved the Trinity Project in 1965 in the following language:
*1315
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.
Sec. 101. That the following works of improvement of rivers and harbors and other waterways for navigation, flood control, and other purposes are hereby adopted and authorized to be prosecuted under the direction of the Secretary of the Army and supervision of the Chief of Engineers, in accordance with the plans and subject to the conditions recommended by the Chief of Engineers in the respective reports hereinafter designated:
Trinity River, Wallisville Reservoir, Texas: House Document Numbered 215, Eighty-seventh Congress, at an estimated cost of $9,162,000:
Provided,
That nothing in this Act shall be construed as authorizing the acquisition of additional lands for establishment of a national wildlife refuge at the reservoir ; . . .
*1316
The following works of improvement of rivers and harbors and other waterways for navigation, flood control, and other purposes are hereby adopted and authorized to be prosecuted under the direction of the Secretary of the Army and supervision of the Chief of Engineers, in accordance with the plans and subject to the conditions recommended by the Chief of Engineers in the respective reports hereinafter designated. .
Trinity River and tributaries, Texas: House Document Numbered 276, Eighty-Ninth Congress, including navigation, except that the recommendations of the Board of Engineers for Rivers and Harbors, dated March 14, 1963, shall apply, and there is hereby authorized $83,000,000 for initiation and partial accomplishment of the project. Prior to expenditure of any funds for construction of those features designed exclusively for navigation, the Chief of Engineers shall submit to the Congress a reevaluation based upon current criteria.
57
In 1967 and 1968 the only apparent activity in the Trinity Basin, with the exception of continued study and planning of the various projects, related to the modification of the high-level bridges. In both years Congress appropriated funds, as requested by the Corps, but with the limitation that such funding “is in no way to be interpreted as approval of the planning and construction of the navigation portion of the project.”
58
The Corps concluded a reevaluation study of the economics for the navigation aspects and submitted it to Congress in 1968.
59
The District Engineer’s report stated that the navigation features were “well justified”.
60
The Southwest Division Engineer, in a one sentence endorsement, concurred in that conclusion;
61
the acting Chief of Engineers, relying on the District Engineer’s statistics, concurred;
62
the Bureau of the Budget stated briefly that it had “no objection” to the transmission of the report to Congress,
63
and the Secretary of the Army transmitted the report to the Speaker of the House of Representatives on July 15, 1968, without commenting upon the merits of the report.
64
A close examination of the Senate and House Reports, conference reports, and public hearings indicates that since the submission of the 1968 reevaluation study there has been no Congressional approval of the study’s findings, nor approval of construction on the navigation channel.
*1317
2.
A CHRONOLOGY OF ENVIRONMENTALLY-RELATED EVENTS
The Corps of Engineers’ attention was first drawn to a possible adverse environmental effect of the Wallisville saltwater barrier project in 1960, ten years before the advent of NEPA, when the Fish & Wildlife Service, U. S. Department of the Interior, stated that marine (saltwater) commercial fishing might be affected. Based upon a fifty year period of analysis of fresh water fishery and wildlife aspects of the dam, the service reported :
It is evident that there will be some loss of nursery areas for marine fish and shellfish, but until the Bureau of Commercial Fisheries has been able to conduct the necessary investigations and adequate assessments, the project effects on the marine fisheries cannot be made.
The amount of nutrients and fresh water that will enter the bay areas will be reduced considerably and will have an adverse and cumulative effect on marine fisheries. Until such time as studies have been made, the effects of the projects on marine fisheries will remain unknown.
65
The report noted that there would be substantial benefits to sport and commercial fresh water fishing, as contrasted with the saltwater marine fishing. There would be elimination of some upland game and fur animal habitat, but this was thought to be insignificant. The report indicated that potential benefits could be obtained for waterfowl and hunting if a National Wildlife Refuge was included. Natural habitats in other areas of the Texas Coast were reportedly being rapidly engulfed by increasing industrial and urban expansion.
There was apparently substantial local public opposition to the wildlife refuge, as it would necessarily require acquisition of additional, privately-owned land.
66
At the time of recommending construction of the Wallisville Project to Congress, the Corps also recommended that the wildlife refuge should be considered favorably, but that the necessary water rights should be acquired by someone other than the Corps. The Corps also pointed out that the refuge was regarded as being a severable economic component which could be included or excluded without affecting the justification for the reservoir project itself.
67
As to the reported effect of the Wallisville Project upon marine commercial fishing, the 1961 report was silent, noting only that “[t]he Acting Regional Director states that the Bureau of Commercial Fisheries advises that no investigation has been made of the marine commercial fishers relative to the Wallisville reservoir, however, it is proposed to make adequate study of this phase of the reservoir project when funds become available.”
68
In 1963 the Assistant Secretary for the U. S. Department of the Interior communicated with the Corps regarding the claimed damage to commercial fishing. He wrote:
The Fish and Wildlife Service advises that significant losses to the marine commerical fishery would result in the absence of the fresh water discharges recommended in its report. Freshwater inflows for the maintenance of fishery resources is as much a water requirement as that for navigation, industrial supply, etc., and should be
*1318
provided for in the comprehensive planning for the development of all river basins. The Department therefore urges that every effort be made to provide for mean monthly fresh-water discharges into Trinity Bay as recommended by the Fish and Wildlife Service.
69
The issue of the project’s effects upon marine fishing led the Corps to employ Dr. Gordon Gunter, a marine biologist from Mississippi. His report, filed in 1966, stated that the reservoir would have a minor effect only. In his opinion, the amount of fresh water diverted by the reservoir from its normal flow into Trinity Bay would be minimal, as the majority of the water diverted would be attributable to a state funded reservoir, located upstream at Lake Livingston, with which Wallisville was to be jointly operated.
70
Aside from the brevity of his reports, Dr. Gunter’s covering letter placed much of his analysis in question:
Enclosed is my report on the Wallis-ville Reservoir. I am sorry that I could not get it to you right away. However, I ran into a buzz saw of things that had to be done when I got back home and I did not get the statistical data I wanted right away.
Even so, none of this can be used with any surety, and the really important thing is that Galveston Bay produced a great many oysters last year. The Bay is quite rich in nutrients.
71
Prior to receiving this report, the Corps reportedly placed much reliance on the opinion of the Fish and Wildlife Service that the project would produce substantial fresh water benefits.
72
The then Division Engineer, Brig. Gen. W. T. Bradley, reported that a 1966 conference with the U. S. Fish and Wildlife Service had led him to believe that the Service had made a judgment evaluation of the impact on the commercial fishing industry which was based substantially upon a lack of basic data. As to the Gunter report, he stated “it appears from his analysis that a scientific evaluation of the project’s impact upon wildlife might well result in only a small fraction of that resulting from the approximation made by the Fish and Wildlife Service.”
73
The report of the conference which was attended by representatives of the Corps from both the District and Division levels, the Bureau of Sports Fisheries and Wildlife, and the Bureau of Commercial Fisheries, indicated that an estimate of the commercial loss could be placed at slightly more than $562,000 annually. The report concluded by stating “based upon available data and the assumptions made, the estimates appeared to be reasonable.”
74
Nevertheless, to this date the Corps has attributed no financial loss to commercial fishing. The Corps’ present position is as follows:
The possibility that such a loss might occur was considered. Available techniques and data, however, did not produce results indicating that
*1319
such a loss would, in fact, occur. Accordingly, no cost for this item was taken into account in the economic analysis of the project.
75
The report of the 1966 conference also
noted
that it was
recognized by
all parties that “the construction of Wallisville is a certainty whether it is done by the Corps of Engineers or by the Trinity River Authorities.”
76
Although there was continuing controversy over this issue for several years, it reached its zenith in 1970. In February of that year, Dr. R. T. Baldauf published a report conducted by Texas A&M University on behalf of the Department of the Interior and with the cooperation of the Fish and Wildlife Service. Covering more than a two year study period, the report found that the Wallisville reservoir would destroy approximately 12,500 acres of nursery grounds upon which various commercial marine species depended by converting those acres from saltwater to freshwater.
77
To resolve the obvious inconsistencies contained in the two reports, the Corps engaged a firm known as Environment Consultants, Inc., of Dallas, Texas, to evaluate both reports. This firm concluded that the Gunter report “lacked any substance and would not hold water under close scrutiny” because it was “overly simplistic.”
78
The report of Environment Consultants, Inc. stated that Dr. Gunter had misused or juggled figures regarding water diversion and, as such, his findings were “not sensible.” In summary, it stated that “the entire report should be dismissed as having no validity.”
79
As for the Baldauf report, Environment Consultants, Inc. found that the placement of sampling stations could have been better, but that the data overall, was a “tribute to their good field technique.”
80
By comparison, the criticism of the Baldauf report was slight.
81
Only shortly before the Baldauf report was published, the National Environmental Policy Act of 1969 became effective. Copies of the Act were disseminated throughout the Army Corps of Engineers on March 3, 1970.
82
In May, 1970, the first interim guidelines regarding statements on proposed federal actions affecting the environment were issued by the Council on Environmental Quality.
83
In July, 1970, the Galveston Division of the Corps established an Environmental Resources Section of the Project Planning Branch. The staff included civil engineers with backgrounds in water resource planning, hydraulics and hydrology and agronomy. Later, they were joined by a landscape archi
*1320
tect, a biologist, and an officer with chemical engineering background.
84
In early August, 1970, the Department of Defense issued an interim set of guidelines on the preparation of environmental statements.
85
They were very general guidelines aimed at all branches of the Department of the Defense dealing with environmental areas. In that same month, the office of the chief engineer advised all Districts that environmental statements should be prepared for projects under construction where unresolved conflicts existed. Because of the controversy surrounding the Wallisville reservoir, the decision was made that same month to prepare an environmental statement.
86
The first preliminary draft of a statement, also prepared in August, was submitted to Southwest Division (SWD) for comment by the District Engineers. There it was generally revised and augmented by the Environmental Resources Branch, Southwest Planning Division, and then returned to the Galveston Division for review.
87
This had no sooner been done when new Corps instructions were promulgated on September 25, 1970, giving more detailed guidance on the preparation and coordination of environmental statements. The need for coordination with other federal agencies was emphasized.
88
After further revision to meet the new specifications, the preliminary draft was submitted for comment to various federal and state agencies in October, 1970, by the District Engineer.
89
In November, 1970, the Army Corps of Engineers disseminated a set of environmental guidelines for civil works programs.
90
The preliminary draft was again modified, based upon comments received, and drafts were submitted through channels on January 18, 1971, a copy of which was subsequently transmitted to the Council on Environmental Quality.
91
On January 28, 1971, new guidelines for the preparation for impact statements were published by the Council on Environmental Quality.
92
Apparently in response to these new guidelines and other comments received, the draft was revised again by the District Engineer in February of 1971 and was believed to be a final statement. In late March, however, the district was advised by SWD that major revisions were required in accordance with comments provided by the staff of the Southwest Division. During April and May, 1971, the statement was revised and submitted to the District Counsel for review.
93
His response was:
The attached statements meet the requirements of Section 102(2) (C) of the National Environmental Policy Act of 1969 ( Public Law 91-190 ).
94
In April, 1971, further modifications to the Environmental Guidelines were issued by the Council on Environmental
*1321
Quality.
95
These are the latest guidelines issued by the CEQ.
At about this time, however, the Corps received a letter dated June 7, 1971, from the Assistant Secretary of Commerce transmitting critical comments supplied by the National Marine Fisheries Service. The NMFS comments, based upon the February, 1971, draft, were critical of the Corps’ environmental decisions relying upon Dr. Gunter’s report. The comments stated:
Among the biologists who have investigated this area, only
one
has concluded that the environmental effects of the project on the estuary would be minimal . . . the Corps of Engineer’s consultant.
96
The strongly worded report criticized other Corps environmental decisions regarding the Wallisville Project, such as the refusal to reconsider relocating the dam upstream where, reportedly, the harm would be reduced. It also criticized the Corps’ summaries of the various consultant reports as given in the environmental statement because, although technically correct, the summaries conveyed “an erroneous impression that the consultant’s (Gunter) report which reports some biological observations of one month, was equally (as) thorough as the Texas A&M team’s report which reported on a sampling program conducted for more than two years.”
97
The NMFS report also called attention to Dr. Gunter’s covering letter noted previously. Meanwhile, the Corps’ first set of proposed regulations on the preparation and coordination of impact statements was issued in June of 1971.
98
Concern over the growing and expressed opposition to the Wallisville Project at such a late stage in the planning phase led to a conference in Galveston on June 25, 1971, of representatives from the Galveston District and Southwest Division of the Corps, the Trinity River Authority, the City of Houston, and the Chambers-Liberty Counties Navigation District. It was felt that the Corps had only three courses of action: (1) to stop the project until more comprehensive environmental studies were made and the statement detailed, (2) to slow down construction pending further studies, or (3) to continue working as rapidly as possible, but also to work on strengthening the environmental impact statement.
99
The last course of action was selected because it was not believed that the second option would produce new data within a “reasonable time frame”, because the benefits were thought to be needed immediately and partially because it was feared that stoppage might cloud the status of the future Trinity River Navigation Project.
100
The acting chief of the Southwest Division Engineering recommended that the District Engineer not compromise the Corps’ position with Dr. Gunter; instead, he should insert a statement in the environmental impact statement that ways would be found to mitigate the loss of the marshlands, and he should accept the position that the mitigation losses would be paid for by someone. No concern was to be paid to the benefit-cost ratio.
101
Modifications were made once more in the environmental impact statement which was again submitted to the District Counsel who, as before, found that it met the requirements of the law.
102
At this point the record stops. The fi
*1322
nal impact statement, dated December 13, 1971, does not reflect the channels through which it was submitted for approval by or within the Corps, whether it was submitted to any other federal agencies, or whether any comments thereto were received. Furthermore, it cannot be determined from the impact statement itself or from the record before this Court whether such statement was reviewed and approved by the Secretary of the Army and whether, in turn, the Secretary transmitted the statement to Congress for review. The record only reflects that a copy was received by the Council on Environmental Quality in late January of 1972.
103
C.
THE ROLE OF THE WALLISVILLE PROJECT FOR NEPA PURPOSES
The history of the comprehensive development plans for the Trinity Basin reveals that the Wallisville Project, although funded separately, was and is, in fact, an important and essential component. Thus an injunction as to further construction on any aspect of the Trinity Project could be justified pending completion of a satisfactory impact statement and full review as required by law. This Court carefully considered the issue of retroactivity and those cases which have held, more or less categorically, that NEPA is not to be applied retroactively.
104
However, NEPA does not contain the traditional “grandfather clause” with which Congress has exempted ongoing projects from laws it intends to be applied prospectively only.
105
Those cases of the Court of Appeals for the Fifth Circuit which discuss or involve factual situations related to the issue of retroactivity or environmental considerations have also been carefully noted.
106
A majority of the better reasoned cases have generally held NEPA applicable to ongoing projects, using a variety of tests.
107
*1323
The guidelines of the Council on Environmental Quality (CEQ) would favor applying NEPA in full except in instances in which it is not practicable to reassess the basic course of action. When this is the case, the guidelines state that “further incremental major actions” should be “shaped so as to minimize adverse environmental consequences.”
108
As a rule of thumb to employ during this transition period when numerous federal projects initiated prior to NEPA are still underway, this Court is persuaded that a presumption in favor of NEPA’s application is proper, particularly where substantial action is yet to be taken, absent equally persuasive countervailing factors.
The present projected total cost of the Wallisville Project is approximately $28,800,000. While this is a substantial figure, it is only about two percent of the total present projected cost of the Trinity Project. Despite the extent of completion of the Wallisville Project, this Court cannot ignore its relationship to the Trinity Project which has now reached a coherent stage of development that is distinctive and comprehensive.
See
Citizens for Clean Air v. Corps of Engineers of U. S. Army, 349 F.Supp. 696, 708 (S.D.N.Y.1972). The guidelines of the CEQ advise the agencies to bear in mind the effect a complex of projects may cumulatively produce and direct that the lead agency should prepare an environmental statement, if it is reasonable to anticipate a cumulatively significant impact.
109
The majority of decisions involving agency attempts to divide projects or development programs into artificial “segments” for determining the scope of environmental impacts have opposed such action on the grounds that this would frustrate the vitality of NEPA by allowing piecemeal decisions.
110
The Fifth Circuit Court of Appeals has also held this approach to be unreasonable. Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013, 1023 (5th Cir. 1971), cert. denied, 403 U.S. 932 , 91 S.Ct. 2257 , 29 L.Ed.2d 711 . Thus, this Court concurs in and adopts the position that impact statements are required for ongoing federal projects initiated prior to January 1, 1970, the effective date of NEPA, which are likely to extend significantly into the future. Environmental Defense Fund v. Tennessee Valley Authority, 339 F.Supp. 806, 811 (E.D.Tenn.1972). This is obviously a balancing test based on practical considerations. In its totality, the development of the Trinity River Basin has not reached that stage of progress where the cost of alteration or abandonment would definitely outweigh whatever benefits might accrue therefrom. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1331 (4th Cir. 1972), cert. denied, 409 U.S. 1000 , 93 S.Ct. 312 , 34 L.Ed.2d 261 .
This Court believes that equitable considerations must also be taken into consideration. First, as the record, reflects, the Corps of Engineers has invested a substantial amount of time, effort and technical expertise on the Wal
*1324
lisville Project. Until the Baldauf report stressing the resulting estuarine damage was published in February, 1970, there is every reason to conclude that the Corps exercised a good faith judgment in determining whether or not to proceed. The Corps believed that opponents to the project, who admittedly had no reliable evidence or facts upon which to base a conclusion, were in error. Until 1970 the Corps was under no legal obligation to obtain that evidence upon which an accurate judgment could be based. Similarly, during the first year under NEPA, virtually no one understood what action was really expected under the new law. Guidelines were not issued until the middle and latter part of the year, and they were extremely vague. Only as the case law applying NEPA commenced to develop and fill in gaps could the Corps have known what was required. Similarly, the report of Environment Consultants, Inc., which concluded that the Baldauf report was substantially more accurate than the Gunter report, was not completed until November 5, 1971. At this point construction on Wallisville had already begun. Although the record does suggest that the Corps may have been hasty in awarding the first contract, it does not appear that it was doing so in the deliberate effort to evade the law.
111
Similarly, since the Wallisville Project was funded separately and developed independently of the Trinity Project, it was not patently unreasonable for the Corps to presume that an impact statement as to Wallisville only would be sufficient.
This Court also has been concerned with the multiple purpose nature of the Wallisville Project. Its five authorized purposes include salinity control, navigation, water conservation, recreation and fish and wildlife enhancement.
112
For the most part, the latter three purposes are substantially “local” in nature, particularly that related to water conservation. This purpose was added to the saltwater barrier purpose shortly after the plan for building a barrier was accepted.
113
This purpose developed as the project developed and appears to be one of the more significant features requiring scrutiny by this Court
In instances in which the multiple purposes of a local nature were determined to be particularly substantial, such a determination would equitably favor a resolution of the case under NEPA on a local basis. In other words, if only one of several project purposes was related to the master project and it was relatively insignificant when compared to the purposes serving local needs, equity would not favor granting an injunction as to the local project pending completion of an environmental impact statement as to the larger, minimally associated project. There is presently a-paucity of case law in this area. The only reported case which this Court has found bearing upon multiple purpose issues is Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731, 734 (D.Conn.1972). In that case it was determined that if a highway segment which had a utility of its own was constructed, it would narrow the range of locality alternatives of the major route. Accordingly, its construction was enjoined.
Id.
at 740 . That particular problem is not present here because all navigation, existing and proposed, will use the waters of the Trinity River, if at all. Keeping in mind the basic purpose of NEPA to avoid piecemeal environmental evaluations, a practical test to determine at what point a multiple purpose project becomes sufficiently associated with a major project so as to be controlled by it basically turns on the nature and extent of the nexus between the two projects. If in any given relationship the nexus between a major project and a smaller, multiple purpose project is exceedingly thin and attenuated, it would appear to
*1325
be unreasonable and impracticable to enjoin what is substantially a local project. Similarly, if the major project is not yet sufficiently distinct or comprehensive, the nexus might be insufficient as well.
In the present case the Trinity Project is sufficiently distinct, but an evaluation of the nexus poses difficulty. According to Corps benefit-cost figures for the Wallisville Project in fiscal year 1972, the latest in the record, 41.8 percent of the total benefits are attributed to navigation and 25.4 percent to salinity control.
114
Thus on the surface it appears that over 65 percent of the total project benefits are attributable to a role compatible with the Trinity Project. In light of the existing navigation to Liberty, Texas, however, and the barrier impact on saltwater accompanying navigational uses, the above percentages do not necessarily reflect an accurate nexus between the two projects. Unfortunately, the present record does not provide a basis for a more informed judgment. However, it is not necessary at this point for the Court to make such a determination because, as the following will demonstrate, the record raises questions as to the true significance of certain of the claimed purposes of the project.
1.
WATER CONSERVATION AND SUPPLY
The record is replete with references and statistics regarding the role and value of the Wallisville Project in conserving river water for industrial and municipal purposes.
115
This Court accepts the proposition that if the project was operated jointly with the state built Lake Livingston reservoir, for which it was designed, a substantial increase in the amount of water captured would occur.
116
As counsel for the Corps points out, the public need for water is also an essential environmental element.
117
There are some detracting factors in the record, however, which are not sufficiently clarified in the present Wallis-ville impact statement as prepared by the Corps. For example, it can be misconstrued, since it suggests that conservation may be needed for drinking water.
118
The appended comments from the City of Houston also suggests this
*1326
possible use. However, comments dated July 7, 1971, from the Southwest Planning Division of the Army Corps of Engineers, made in connection with a draft copy of the impact statement, noted:
The misunderstandings that reservoir water will be used as drinking water have been clarified in the environmental statement as previously noted.
119
Contrary to this representation, the Court can only conclude that the environmental statement is anything but clear. Furthermore, chemical treatment of water in order to rid it of vegetation may also render the water unsuitable for drinking purposes.
120
The record also places in question the actual volume of water available for supply over the life of the project and the benefits attributed to this supply. When the Wallisville Project is placed in “system operation”, the normal water level will apparently fluctuate between one and four feet with an average level of 2.3 feet above sea level. Yet the impact statement almost invariably uses the four foot level whenever reservoir volume is considered.
121
The impact statement makes two references to an operationally lower level, both of which are lost in the text. The first declares:
After twenty-five years, the water level may frequently be drawn down
to an elevation of one foot above mean sea level whenever necessary for de-' velopment and use of the water yield from the lake.
122
The other reference states:
Later, the local sponsors, under their contractual agreement with the Government, may utilize the full Wallis-ville yield down to the minimum operating level of one foot above mean sea level, which is required for control of the salinity intrusion.
123
Furthermore, a letter in the record dated February 8, 1961, from the then Galveston District Engineer reported that if the Livingston and Wallisville Reservoirs were operated in a manner calculated to yield the maximum water from the combined reservoirs. Wallisville would be empty of storage conservation water approximately 63 percent of the time and that large portions of the reservoir area would be mud flats. He continued by stating, “[a]s a water conservation storage reservoir, the four foot Wallisville reservoir is considered to be without merit.”
124
There appears to be little discussion or analysis of potential growth of water plants which reportedly has cut the volume of most lakes and reservoirs in Texas by one-half.
125
Sediment collection in the reservoir, depos
*1327
ited by the river, is lightly discussed in the impact statement as being “variable and unpredictable.”
126
Yet the record reflects that the Corps predicted in 1965 the reservoir volume would be diminished by twenty percent at the end of fifty years.
127
No discussion is given to the effect of the proposed addition of a duplicate set of locks and the reusing of the river water for navigation purposes associated with the Trinity Project,
128
to which the water rights of the City of Houston and the Trinity River Authority are presumed to be subordinated.
129
Also, the effect of water evaporation appears to be inadequately considered, particularly where the record indicates that it may be very substantial.
130
An important element in an analysis such as this one is the degree of need, present or projected, for one or more uses of water. The impact statement does not discuss the fact that off-river freshwater storage reservoirs for rice irrigation nearly equal the water storage capacity of the Wallisville reservoir after deducting that quantity re-
*1328
served for navigation purposes.
131
Furthermore, it appears that the “need” for rice farmers for proposed crop expansion uses may not necessarily exist in light of their recent opposition to proposals of the Federal Government for expanding regulated production.
132
As to the total need of the community for water supply, it is worth noting that at no time since fiscal year 1967 have the total estimated benefits attributable to the water supply purposes of the Wallis-ville Project ever exceeded 3.7 percent of the total claimed project benefits.
133
This would suggest that water need plays a very low role in the project’s motivating forces.
It is quite possible, if not probable, that the water needs of this area are substantial and that they will increase dramatically in the future. Nevertheless, the record casts considerable doubt on whether the Wallisville Project was intended to meet those needs, regardless of the understanding of local interests. Furthermore, there is some question as to whether it can meet those needs, even if it were intended to do so. The impact statement’s analysis of these factors appears to be superficial. Assuming that the Corps has not, in fact, made an error in judgment, the impact statement needs clarification and amplification so that a decision-maker may be apprised of the nature and extent of the claimed water needs, the availability of such water from the project sources and the uses to which it will be put. The Court is simply unable to conclude from the impact statement that a full disclosure of these facts has been made as required under NEPA.
One additional matter is worthy of note. The impact statement does not reconcile the fact that, as reported by Corps officials, system operation of Wallisville with the Lake Livingston reservoir would produce only an additional $38,000 of additional claimed annual water supply benefits, while eliminating $291,000 of claimed annual recreation benefits.
134
*1329
2.
SALTWATER BARRIER EFFECT
Reportedly, the saltwater barrier would permit the withdrawal of 880 million gallons per day from the Trinity River without contamination.
135
The impact statement reports that Wallisville Lake, operating in conjunction with Livingston reservoir, will prevent average annual crop damages in excess of $800,000,
136
a figure somewhat higher than the $500,000 claimed in 1965.
137
The use of this figure in this context is not entirely appropriate, since it does not indicate that only about half that amount is attributable to the Wallisville Project.
138
The record is not clear as to the emphasis which should be given to a saltwater barrier. Although the Corps attributes 25.4 percent of the total project benefits to this purpose,
139
the record reflects that local interests did not seek saltwater protection until navigation expansion programs began.
140
There apparently has been no demand for such a barrier, unrelated to navigation, since 1950.
141
The record does not provide a basis for allocating this purpose between existing and proposed navigation.
3.
FACILITATING EXISTING NAVIGATION
The record does reflect that there is some commerce on the existing navigation channel to Liberty,
142
and that early plans for the Wallisville Project included navigation locks sufficient to meet existing traffic.
143
The record is not clear as to whether anticipated channel enlargement plans, associated with the Wallisville Project, are sought to be justified on the basis of meeting existing navigation needs.
144
Although the present lock si2;e is greater than that needed for existing commerce,
145
that factor alone is not sufficient justification for finding the required “nexus” with the Trinity Project.
4.
RECREATION
The Wallisville Project anticipates providing four public park areas with related facilities.
146
Substantial annual benefits up to 38 percent have been attributed to recreation,
147
the present figure being approximately 18 percent.
148
Aside from the recreation eval
*1330
uation problems discussed hereafter in the benefit-cost section of this opinion, the impact statement does not meet, discuss or evaluate in any detail the various reports questioning the validity of the claimed recreation benefits. As has been mentioned in the discussion of water conservation, it has been reported by a past Corps official that joint operation of Lake Livingston and Wallisville reservoirs would deplete it of conservation water (on which water recreation would occur) approximately 63 percent of the time, leaving large portions of the reservoir in mudflats.
149
This same joint operation results in the loss of $291,000 worth of recreational benefits in order to obtain a minimal amount of increased water supply benefits.
150
In 1965 the Corps reported that the shallow water depth of the project would be the principal deterrent to recreational use of the reservoir waters themselves.
151
While the impact statement does state that recreation value is of short term duration and may terminate after 25 years,
152
the record is unclear as to whether this was taken into account in evaluating claimed benefits. More importantly, this does not correlate with the fact that recreation benefits, as claimed, were not made on the basis of existing recreation needs, but on projected needs in the year 2010, a point in time beyond which present recreation benefits ostensibly will terminate.
153
Early Corps’ instructions suggest that recreation “needs” are to be evaluated.
154
Nevertheless, the current project evaluations do not appear to have done so; nor have they taken into account, as requested by the Bureau of Outdoor Recreation, U. S. Department of the Interior, the “need” for natural recreation environment.
155
5.
FISH AND WILDLIFE
The presently claimed fish and wildlife benefits for Wallisville are $157,000 annually,
156
in contrast with the originally estimated $109,300,
157
although the impact statement does not indicate the basis utilized in arriving at these benefits. One brief reference in the impact statement recites that “many thousands of acres of rice fields”, the cultivation of which is permitted by fresh water from the Trinity, furnishes suitable homes to waterfowl.
158
This representation may or may not be in conflict with a 1962 report of the Bureau of Sport Fisheries and Wildlife noting that intensive management of a water area, not
*1331
water alone, is the “key to making the area attractive to
waterfowl.”
159
6.
SUMMARY
As the above discussion points out, each of the local purposes of this claimed multiple-purpose project at Wallisville conceivably may be lacking in substantial support, thus placing additional weight on the navigation and salinity barrier purposes of Wallisville which form the basis of its nexus with the Trinity Project. The situation is simply very much in doubt based on the record before this Court. This being the case, a decision based solely on deference to the claimed multiple purposes of Wallisville and the record of Corps’ good faith to date cannot be justified. This is so, even though substantial construction is underway, high costs have been incurred and a delay may well increase them. The law provides that administrative costs, delay and related problems may not undermine NEPA’s requirement that federal agencies comply “to the fullest extent possible.”
160
That future funding of a project may be imperiled or placed in doubt by a delay is not sufficient reason to alter the rule,
161
nor does it matter that a federal agency has executed contracts with contractors who may lose income through delay,
162
that employees will lose earnings,
163
or even that there exists the likelihood of increased project costs.
164
As one Court properly phrased the resolution of such problems:
The Court is not suggesting that the status of the work not be considered in determining whether to proceed with the project. It is suggesting that the degree of the completion of the work should not inhibit the objective and thorough evaluation of the environmental impact of the project as required by NEPA. . . . [A]s the Court interprets NEPA, the Congress of the United States is intent upon requiring the agencies of the United States Government, such as the defendants here, to objectively evaluate all of the projects, regardless of how much money has already been spent thereon and regardless of the degree of completion of the work.
165
From a complete analysis of the record in this case, this Court does not believe that the project in question, the Wallis-ville Dam and related facilities, has progressed to the point where the costs of altering or abandoning it would certainly outweigh the benefit that might accrue therefrom to the general public.
166
*1332
This Court originally denied the plaintiffs’ request for a temporary injunction pending this decision on the merits because it appeared on the face of this massive record that the Wallisville Project probably served primarily a local role and was merely compatible with the Trinity Project. Although Wallisville appeared to function as a significant part of Trinity, this Court, in weighing the equities, did not wish to delay completion of a project satisfying important local needs which originated and developed in concept long before NEPA was ever considered or became effective as a law. Local governmental entities appeared to rely upon Wallisville for water, rather than to develop their own separate facilities. On the basis of a full probing of this record, however, such an equitable resolution is not warranted. There are simply too many issues in this case wherein there is a failure to satisfy the full disclosure requirements of NEPA, including little supported justification in the present environmental impact statement for the claimed local purposes.
Accordingly, an injunction will be granted by this Court to halt any construction on the overall Trinity Project, including further construction on the Wallisville reservoir, until the requirements of NEPA as elaborated upon in the following sections have been complied with. The true purposes and character of Wallisville simply must be ascertained. If and when the Corps can present to this Court additional evidence as to Wallisville’s local purposes, and if this Court upon appraising such evidence finds that this project possesses, in reality, substantial local purposes, then it will dissolve the injunction as to Wallisville upon the resubmission of an environmental impact statement which satisfies the requirements of NEPA in all other respects. On the other hand, if such evidence is inadequate under the law and the claimed primarily local purposes are not demonstrated, the Wallis-ville Project will then be considered by this Court only as the first segment of the Trinity Project. Further construction of Wallisville will then be delayed pending completion, review, and acceptance of the Trinity environmental impact statement as outlined in the following sections of this opinion.
D.
THE ROLE OF THE COURTS UNDER NEPA
1.
SCOPE OF JUDICIAL REVIEW
The role of District Courts in reviewing decisions of federal agencies under NEPA has not yet been clearly enunciated, and it appears that differing standards have been used. It has been held that in the ultimate weighing of values, the courts cannot strike the balance but must insist that the appropriate administrative officials use the scales prescribed by Congress with a scrupulous regard for the importance of the choices presented.
167
Another decision has noted that a court cannot seek to impose unreasonable extremes or inject itself into the area of discretion of the agencies as to the choice of the action to be taken.
168
Yet, as one of the major forerunners of environmental litigation noted, the courts must see that important legislative purposes are not lost or misdirected in the vast hallways of the federal bureaucracy.
169
At least one Circuit has held .that the scope of review of an agency decision, which normally must be upheld if supported by “substantial evidence”, is not altered by the National Environmental Policy Act.
170
The Supreme Court has
*1333
peripherally touched upon environmental values in
Overton
Park.
171
The decision was formally based upon sections of two federal highway acts which included clear and specific directives that the Secretary of Transportation “shall not approve any program or project” that requires the use of any public park land “unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park. . . . ”
172
The language in NEPA is not as specific. Nevertheless, NEPA was enacted many years after the statutes at issue in
Overton Park
and was intended to cover a multitude of potential environmental harms, rather than one specified item. As the Supreme Court remarked about the highway statutes, the very existence of NEPA indicates that protection of the environment was to be given paramount importance and thus was not to be placed on an equal footing with the usual economic and technical factors.
173
The Supreme Court reviewed the standards of the Administrative Procedure Act, 5 U.S.C. § 706 (1964 Ed., Supp. V), and found the “substantial evidence” test authorized only when the agency action is taken pursuant to a rule-making provision of the APA itself, or when the agency action is based on a public adjudicatory hearing. However, the court could not engage in a de novo review in the absence of certain agency procedures which, as here, were not present. The generally applicable standards of § 706 were held to require the reviewing court to engage in a “substantial inquiry.”
174
The Secretary’s decision, according to the Court, is entitled to a presumption of regularity, although that presumption is not to shield his action from a thorough, probing and in-depth review. The reviewing court must then determine whether the Secretary has acted within the scope of his authority. This would include ascertaining if the actual choice made was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, if the decision was based on a consideration of the relevant factors and if there had been a clear error of judgment. Despite the fact that the inquiry into the facts is to be searching and careful, the ultimate standard of review is narrow, as the court is not empowered to substitute its judgment for that of the agency.
175
This Court believes that the
Overton Park
test is a proper one for testing agency decisions under NEPA. Although the Supreme Court has presently foregone the opportunity to speak directly on the applicable test,
176
this Court believes that
Overton Park,
expressly interpreting Congressional legislation in light of Congressional concern over environmental issues,
177
was intended to serve as a guidepost in these presently uncharted waters. The Fifth Circuit Court of Appeals has only recently adopted this same standard. Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir., 1973). Furthermore, this Court
*1334
finds the “substantial inquiry” test more compatible with the problems surrounding burden of proof, discussed below, than would be the case with the “substantial evidence” test. Nevertheless, this Court has given close consideration to both tests in the light of the facts and the relevant law in this case, and it would reach the same conclusion, regardless of which test was applied.
2.
BURDEN OF PROOF
New courts have expressly indicated upon which party the burden of proof should fall, although several have indirectly reached the issue. In a ease similar to the one before this Court, a district judge has held that the burden of persuasion rests with the plaintiffs.
178
The Court of Appeals for the Second Circuit, in one of its earlier decisions, pointed out that the burden of proof must not be shifted so as to give, in essence, the plaintiffs a virtual veto power over federal agency decisions.
179
On the other hand, the Court of Appeals for the Fourth Circuit has held that NEPA places a heavy burden upon the federal agencies to enable a court to ascertain whether there has been a genuine and not a perfunctory compliance with the Act, thus requiring the agency to “explicate fully its course of inquiry, its analysis and its reasoning.”
180
The District of Columbia Circuit, in
Calvert Cliffs,
pointed out:
It is . . . unrealistic to assume that there will always be an intervenor with the information, energy and money required to challenge a staff recommendation which ignores environmental costs. NEPA establishes environmental protection as an integral part of the (agency’s) basic mandate. The primary responsibility for fulfilling that mandate lies with the (agency). Its responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage. Rather, it must itself take the initiative of considering environmental values at every distinctive and comprehensive stage of the process beyond the staff’s evaluation and recommendation .
181
The Court of Appeals for the Second Circuit has echoed the language and reasoning of
Calvert Cliffs,
noting that it was, in part, for this reason that Congress compelled the agencies to seek the aid of all available expertise and formulate their own position early in the review process.
182
Although neither of these two cases expressly laid the burden of proof upon one party or the other, both clearly reveal the rationale for placing it upon the federal agency, once a plaintiff has made out a prima facie ease of a violation of NEPA. The agencies have created environmental divisions or sections within their structure whose tasks include the survey, evaluation and description of environmental features and impacts. Publicly paid experts spend their full time investigating these features in conjunction with the various projects undertaken by their agencies as well as coordinating with other agencies who are experts in particular fields. Aside from the limited roles served by the Council on Environmental Quality and the Environmental Protection Agency, there is no public environmental “ombudsman” to superintend agency compliance with NEPA. It
*1335
would be unrealistic, as pointed out, to expect that the various environmental and conservation groups and individuals would be able to provide an effective check and balance against agency decisions affecting the environment. In most cases, these environmentalists are teachers, laborers, professors, housewives, etc., who must spend the vast majority of the employment time engaged in occupations other than watching the agencies. On the other hand, the agency employees spend their employment time performing tasks related to the very subject matter and activities upon which environmental issues are based.
Equally important is the nature of the litigation and the judicial role. The record in this case, for the most part relating only to one reservoir, is massive and contains hundreds of documents pertaining to scores of issues. This Court has necessarily spent a truly inordinate amount of time in reading, comparing, analyzing, and indexing these documents so as to be able to comprehend this complex lawsuit. Virtually all of this record is the product of the administrative agency, the Corps of Engineers, with the Wallisville impact statement constituting a distillation of what it considered in good faith to be important in such record. Under the circumstances, this Court is compelled to conclude that the very nature of the problem in this legal area is so extensive that if the burden were placed wholly upon citizen plaintiffs, the full disclosure requirements of NEPA would never be implemented satisfactorily and environmental protection as contemplated by Congress would be little more than a fiction. Accordingly, once a prima facie showing has been made that the federal agency has failed to adhere to the requirements of NEPA, the burden must, as a general rule, be laid upon this same agency which has the labor and public resources to make the proper environmental assessment and support it by a preponderance of the evidence contained in the impact statement.
3.
JURISDICTION
Early in the present litigation, the government moved to dismiss on several grounds, including both subject matter and personal jurisdiction. The Court denied the motion to dismiss.
182a
To elaborate here somewhat, this Court finds that jurisdiction is properly based on the federal question statute, 28 U.S.C. § 1331 . Harrisburg Coalition Against Ruining the Environment v. Volpe, 330 F.Supp. 918, 921 (M.D.Pa.1971); Ely v. Velde, 321 F.Supp. 1088, 1094 (E.D.Va.1971); Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F.Supp. 238 , 240 n. 1 (M.D.Pa.1970), aff’d, 454 F.2d 613 (3d Cir. 1971). Furthermore, the pleadings adequately establish jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391 , 428 F.2d 1093, 1097-1098 (1970); Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 , 101-102 (2d Cir. 1970), cert. denied, 400 U.S. 949 , 91 S.Ct. 237 , 27 L.Ed.2d 256 ; Upper Pecos Association v. Stans, 328 F.Supp. 332, 333 (D.N.M.1971), aff’d, 452 F.2d 1233 (10th Cir. 1971), vacated, 406 U.S. 944 , 92 S.Ct. 2040 , 32 L.Ed.2d 330 (remanded to determine mootness); Pennsylvania Environmental Council,
supra,
315 F.Supp. at 245 . Similarly, this Court does not find that the suit is barred by the doctrine of sovereign immunity. Environmental Defense Fund, Inc. v. Corps
*1336
of Engineers of U.S. Army, 325 F.Supp. 749, 763 (E.D.Ark.1971); Crowther v. Seaborg, 312 F.Supp. 1205, 1219 (D.Colo.1970).
In light of the above disposition, this Court does not reach the jurisdictional allegations advanced by plaintiffs resting on 28 U.S.C. § 1361 relating to mandamus and 28 U.S.C. §§ 2201 and 2202 pertaining to declaratory judgment.
4.
STANDING
This Court has studied carefully the Supreme Court’s recent pronouncement regarding the standing to sue in an environmental setting. Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972). It has also considered numerous other lower court cases wherein the issue of standing was raised in environmental settings.
See, e. g.,
Environmental Defense Fund, Inc. v. Corps of Engineers of United States Army, 348 F.Supp. 916 (N.D.Miss.1972); Citizens for Clean Air v. Corps of Engineers of U.S. Army, 349 F.Supp. 696 (S.D.N.Y.1972); Maddox v. Bradley, 345 F.Supp. 1255 (N.D.Tex.1972); Natural Resources Defense Council v. Grant, 341 F.Supp. 356 (E.D.N.C.1972). This Court is satisfied that the present allegations, asserted prior to
Sierra Club v. Morton,
are sufficient for standing. Were they to be determined to be insufficient, which this Court does not find, an amendment would only be a minor procedural matter. Environmental Defense Fund v. Corps of Engineers of U.S. Army, 342 F.Supp. 1211, 1216 (E.D.Ark.1972).
5.
INTERVENTION
To date this Court has received several motions to intervene as of right, Fed.R.Civ.P. 24(a)(2), or, alternatively, permissively under Fed.R.Civ.P. 24(b)(2). Prior to this decision the Trinity River Authority and, joining in one motion, the City of Houston and the Coastal Industrial Water Authority of Texas were granted leave to intervene. Their interests in this matter are amply supported by the facts of this case.
Presently pending are motions to intervene by each of the following Texas cities, moving independently: Dallas, Fort Worth, Irving and Trinity. Another motion is filed collectively on behalf of Houston County (population 18,000), the cities of Crockett (population 7,000), Grapeland (population 1,300), Lovelady (population 400), and the Houston County Water Control and Improvement District No. 1. Finally, another motion is filed collectively on behalf of some 75 cities, 12 counties, 13 soil and water conservation districts and 4 electric cooperatives. This motion shall conveniently be referred to by this Court as the motion of the City of Pantego.
The cities of Dallas and Fort Worth, in addition to their joint interests in the navigation features of the Trinity Project, emphasize their concern for the flood control projects and water supply facilities immediately associated with the project and their cities. Inasmuch as these features, plus the location of the northern terminus of the proposed Trinity navigation channel in Fort Worth, are substantially associated with these cities, their motions to intervene are granted as of right. These claims are substantial, and, as a practical matter, can be impaired or impeded by this litigation. As to the status of the other movants, varying circumstances are noted. The City of Irving, for example, is concerned with flood control features of the project, and the City of Trinity seeks to protect a $13,000 investment in a railroad right-of-way which that City regards as being a potentially good site for a barge terminal. The other movants generally are concerned in varying degrees with flood control, water supply, the recreational needs of its citizens, low cost transportation and their local economy and prosperity.
*1337
The central issue of this litigation involves NEPA and environmentally related aspects of the projects in question. Although they may be affected, the specific elements such as flood control, recreation, economic prosperity, right-of-ways and transportation are not directly the concern of this Court. These issues are not particularly unique to these movants when contrasted with the hundreds of other cities, water districts and other entities which might desire to intervene on similar grounds. Because of this situation, the Court must focus upon adequacy of representation. The Committee Note of 1966 to ' Fed.R.Civ.P. 24(a) noted, in applicable part:
A class member who claims that his “representative” does not adequately represent him, and is able to establish that proposition with sufficient probability, should not be put to the risk of having a judgment entered in the action which by its terms extends to him. . .
A party to an action may provide practical representation to the absentee seeking intervention although no such formal relationship exists between them, and the adequacy of this practical representation will then have to be weighed.
An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.
3b J. Moore’s Federal Practice j[ 24.-01 [10], at 24-17, 18 (2d Ed. 1969). Inadequacy of representation undér the old intervention rule was shown if there was proof of collusion between the representative and an opposing party, if the representative has or represents some interest adverse to that of the petitioner, if the representative fails because of nonfeasance in the duty of representation, and sometimes if the representative is willing but unable to present the claim of the petitioner. 3b J. Moore’s Federal Practice [f 24.08 [2], at 24-184, 185 (2d Ed. 1969). It would appear that the basic standards have not changed under the new rule. Hobson v. Hansen, 269 F.Supp. 401 (D.D.C.1968); 3b J. Moore’s Federal Practice j[ 24.09-1[4], at 24-314, 315 (2d Ed. 1969). Assuming, but not deciding, that these movants have interests which would be impaired by this litigation, it appears that their interests are adequately represented by one or more of the existing parties, cumulatively considered. Intervention as of right is therefore denied to these remaining movants at this time. Similarly, permissive intervention is denied at this time on the grounds that the mere paperwork and duplication of issues and arguments would delay the proceedings and prejudice the interests of all parties, including their own. See, gen., 3b J. Moore’s Federal Practice ¶ 24.10[4], at 24-391 et seq. (2d Ed. 1969).
Holdings of the Fifth Circuit Court of Appeals on intervention questions
183
and the procedures adopted by other courts engaged in environmental litigation
184
do not suggest that another approach is more reasonable.
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E.
THE NATIONAL ENVIRONMENTAL POLICY ACT
1.
THE SUBSTANTIVE POLICY ELEMENTS
The basic requirements and obligations of NEPA have been sufficiently outlined by major decisions.
185
NEPA is at the very least “an environmental full disclosure law,”
186
an “action-forcing” statute,
187
which is intended to assure “substantial and consistent consideration of environmental factors in decision making,” even where it may conflict with other federal objectives.
188
In this manner the “full cost” of a project, including environmental impact, may become known.
189
It is incumbent upon this Court to ensure that the Corps, like all federal agencies, uses “all practicable means, consistent with other essential considerations of national policy,” to meet the policies established by Congress.
190
In this respect, there are two matters which are of particular application to this case.
Requirement of Continual Policy Reevaluation:
Section 102 directs all agencies of the federal government, to the “fullest extent possible,” to ensure that the “policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter. ”
191
This sets a high standard and obligates the agencies continually to review and reappraise existing policies and procedures, not only in light of the developing law, but also in light of the developing agency awareness of environmental factors as issues arise at project sites. Congress sought to ensure that “no agency shall utilize an excessively narrow construction of its existing statutory authorization to avoid compliance.”
192
Thus, an agency’s review must reflect a “systematic, interdisciplinary approach” and be “integrated” with the natural and social sciences, the environmental design arts, and be developed in consultation with the Council on Environmental Quality.
193
It is a matter of common sense that the field level personnel of the federal agencies, those directly associated with the projects creating environmental impacts, are those most likely to become aware of potential conflicts between existing practices and environmental policies. Effective means of communication must be maintained to apprise them of changing environmental practices as well as to allow them to point up related problems. If these discoveries require new legislation, then it is incumbent upon the agen
*1339
cy as a positive duty to bring the issue to the attention of Congress.
194
Mitigation
— The
Substantive Requirement:
NEPA states indirectly, but affirmatively, that under some circumstances federal agencies must mitigate some and possibly all of the environmental impacts arising from a proposed project. This requirement is embodied primarily within Section 101, 42 U.S.C. A. § 4331, with important implementing assistance from Section 102, 42 U.S.C.A. § 4332 . This Court will not endeavor to catalogue all permutations of this requirement, but will highlight a few as they apply to the present litigation.
Consistent with other essential considerations of national policy, all federal agencies must “use all practicable means” to assure safe surroundings, 42 U.S.C.A. § 4331 (a), (b)(2), to attain the widest range of beneficial uses of the environment without unintended consequences, 42 U.S.C.A. § 4331 (a), (b)(3), and to preserve important historic, cultural and natural aspects of our national heritage. 42 U.S.C.A. § 4331 (a), (b)(4). While tested by a rule of practicability with respect to other essential considerations of national policy, these requirements must be implemented “to the fullest extent possible.” 42 U.S.C.A. § 4332 .
Although the mitigation requirement has not been examined in the relatively few reported cases to date, its significance is implicit in the guidelines of the CEQ and EPA. For example, the CEQ guidelines since first issued in 1970 have required that:
Federal agencies will . assess in detail the potential environmental impact
in order that adverse effects are avoided, and environmental quality is restored or enhanced, to the fullest extent practicable.
In particular, alternative actions that will minimize adverse impact should be explored and both the long-short-range implications to man, his physical and social surroundings, and to nature, should be evaluated in order to avoid to the fullest extent practicable undesirable consequences for the environment. (emphasis added)
195
The more recent EPA guidelines provide that:
Remedial, protective and mitigative measures which will be taken as part of the proposed action shall be identified. These measures to prevent, eliminate, reduce, or compensate for any environmentally detrimental aspects of the proposed action shall include those of the agency and others, e. g., its contractors and grantees.
196
More significantly are those EPA guidelines directed toward those adverse impacts which cannot be avoided. They require the agencies to:
Describe the kinds and magnitudes of adverse impacts
which cannot be reduced in severity
or which can be reduced to an acceptable level but not eliminated.
For those which cannot be reduced, their implications and the reasons why the action is being proposed, notwithstanding their effect, shall be described in detail.
Where abatement measures can reduce adverse impacts to acceptable levels, the basis for considering these levels adequate and the effectiveness and cost of the abatement measures shall be specified. In particular this analysis shall detail the aesthetically or culturally valuable surroundings, human health, standards of living, or environmental goals set forth in § 101(b) of the National Environmental Policy Act which would be sacrificed.
197
(emphasis added)
This Court is fully aware that many cases have held that NEPA does not cre
*1340
ate “substantive” rights, but rather creates only “procedural” obligations.
198
To the extent that NEPA does not articulate acceptible levels of air, water, heat and noise pollution, this is an accurate position. To the extent that NEPA does not give the courts the final decision with respect to which way a highway should go, or which trees should stand and which should fall, this is an accurate position. But to the extent that it would allow the agencies merely to disclose the likely harm without reflecting a substantial effort to prevent or minimize environmental harm, it is not an accurate position of the role of the courts under NEPA.
Issues pertaining to mitigation most frequently arise in the context of considering alternatives to the whole or any part of a proposed project’s environmental impact. This was noted by the Eighth Circuit Court of Appeals which stated:
The Corps also argues that it was not necessary to discuss in greater detail the alternative of acquiring land to mitigate the loss of natural resources because this alternative was a separate project requiring separate Congressional authorization. We disagree.
The proposed mitigation plans go to the very heart of the question before the Corps in preparing its environmental impact statement — whether the project should proceed at the present time in view of its environmental consequences. Responsible critics of the project have urged that no project be initiated
until a mitigation plan is actually put into effect
in order to prevent easily avoidable environmental losses. They state that following the commencement of construction, it will become difficult — if not impossible— to acquire suitable land for mitigation because of increased property values and the continued clearing of land for cultivation. Thus, in their view, any mitigation proposal is inextricably linked to the project itself. Such a view is not clearly without merit.
199
Both the Second and District of Columbia Court of Appeals have suggested that judicial action might be required if there was a significant potential for subversion of the
substantive
policies in NEPA.
200
The courts should not impose unreasonable extremes of compliance or inject themselves into the area of discretion as to what action should be
*1341
taken;
201
but they should not hesitate to require further agency consideration when a project appears to call for mitigation and yet none was considered, or only a half-hearted effort was made.
The Wallisville impact statement does not indicate that mitigation was considered or implemented with respect to any environmental impacts noted. Initially, this is not in accordance with the instructions issued by the Chief of Engineers on September 25, 1970. In pertinent part they instruct project planners as follows:
Identify remedial, protective, and mitigation measures which would be taken in response to adverse effects of environmental impacts. Such measures taken for the minor or short-lived negative aspects of the project will be discussed in this section. The adverse effects which cannot be satisfactorily dealt with will be considered in greater detail along with their abatement and mitigation measures in the following section.
202
The Wallisville impact statement does indicate generally that control of some future environmentally related problems, such as increased reservoir vegetation, will be subjected to Corps control measures. There is no specific discussion at any one point, however, which would indicate that consideration of mitigation of existing, major impacts was undertaken. For example, the impact statement, dated December 13, 1971, nearly two full years after NEPA, does not reveal any project modifications since Wallisville was planned and designed in 1965. At the least, this does not comply with CEQ guidelines requiring that agencies of ongoing projects reassess the basic course of action, except where impracticable, and shape further action “so as to minimize adverse environmental consequences.”
203
2.
THE ENVIRONMENTAL IMPACT STATEMENT
a.
Detail Required
The existing guidelines of the CEQ and EPA, as well as those of the Corps, do not yet adequately indicate what amount of detail is required in impact statements. As various courts have pointed out, the statement should gather in one place the discussion of environmental impacts and alternatives
204
so that it serves as comprehensive document upon which responsible agency officials and others might rely in making the required balance between environmental and non-environmental factors.
205
Two district judges, studying impact statements before them, have articulated what appear to be, at first glance, somewhat different tests. One stated that the statement should, at a minimum, contain information as to “all
known
possible environmental consequences.”
206
The other limited it to discussing “the
significant
aspects of the
probable
environmental impact.”
207
The first judge had been presented with a twelve page impact statement from what appeared to
*1342
be a recalcitrant agency. Upon subsequent submission of a more elaborate statement, he dissolved an injunction and stated that it was not necessary to “dot all the I’s and cross all the T’s” in an impact statement.
208
In light of these facts, the tests espoused do not appear to differ substantially, if at all. A reasonable test would be the same as that adopted by present Corps regulations: an impact statement should contain “all possible significant effects on the environment.”
209
The larger the physical size of the environmental amenity at issue, and hence the more readily available for public observation, appreciation, use, or enjoyment, then the greater the likelihood it should be dealt with in the impact statement. This is particularly true if it is endangered or is rapidly diminishing. Likewise, even if the physical size is miniscule or microscopic, the impact statement should deal with it if the environmental impact on it is apt to be significant. In this fashion, the impact statement will be sufficiently detailed so that, if challenged, the courts will not be left to guess as to what is involved and whether the requirements of NEPA have been met.
210
b.
Objectivity Required
Objectivity is required of federal agencies, particularly with respect to evaluation of environmental impacts. The Eighth Circuit Court of Appeals has stated that “the test of compliance with § 102, then, is one of good faith objectivity rather than subjective impartiality.”
211
A district judge has offered a practical interpretation of objectivity as requiring, at a minimum, a good faith effort to comply with the provisions of NEPA. This would preclude, he stated, consciously slanted or biased impact statements wherein intentional misrepresentation was attempted.
212
These are sound tests and should be equally applicable to a federal agency with respect to all environmentally related activities, be it selection of consultants, the undertaking of environmental studies, the reliance upon such studies, the creation of environmental assessments, the coordination with reviewing agencies or the preparation of impact statements. There are indications in the record that the Corps of Engineers may have, at one time or another, been less than objective by engaging in rationalizations and super salesmanship.
213
c.
Written For The Layman
All features of an impact statement must be “written in language that is understandable to non-technical
*1343
minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.”
214
The reason for this standard is that impact statements must assist in rational, thoroughly informed decision making by officials higher up in the agency chain-of-command, including the Congress, the Executive and the general public, some of whom may not possess the technical expertise of those who evaluate the impact and prepare environmental statements. In this regard the present impact statement is deficient.
215
Additionally, when technical procedures are discussed, such as in connection with the benefit-cost analysis issues, the applicable law and methods employed should be adequately explained so that all may understand them.
d.
Discussion Of Alternatives
The role that possible alternatives play in the environmental process is particularly critical because it is usually through this medium that mitigation measures may be discovered. By the use of an appropriate alternative, be it to all or a part of a proposed project, a part of the environmental impact may be mitigated. Like mitigation, the eonsideration of alternatives may not be treated cavalierly by the federal agencies. By the use of the word “alternatives” Congress meant, “[T]he alternative ways of accomplishing the objectives of the proposed actions and the results of not accomplishing the proposed action.”
216
Since first issued in April, 1970, the guidelines of the Council on Environmental Quality have required the following standards for the consideration of alternatives:
A rigorous exploration and objective evaluation of alternative actions that might avoid some or all of the adverse environmental effects is essential. Sufficient analysis of such alternatives and their costs and impact on the environment should accompany the proposed action through the agency review process in order not to foreclose prematurely options which might have less detrimental effects.
217
The Department of Defense guidelines, issued in August, 1970, are similar. They require:
A list of carefully developed
alternatives to the proposed action
that may avoid some or all of the adverse environmental effects. Include with these alternatives economic, technical and
*1344
operational considerations, as well as their environmental impact.
218
Of the several courts that have carefully considered the role of alternatives in the environmental spectrum, perhaps the soundest and most succinct statement comes from the District of Columbia Circuit which has stated:
. Section 102(2) (D) requires all agencies specifically to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” This requirement, like the “detailed statement” requirement, seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Moreover, by compelling a formal “detailed statement” and a description of alternatives, NEPA provides evidence that the mandated decision making process has in fact taken place, and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own.
219
While agencies must consider alternatives to the “fullest extent possible,”
220
the search for appropriate alternatives need be neither “exhaustive”
221
nor speculative and remote.
222
Although only those “reasonably available”
223
need be considered, the discussion and consideration cannot be superficial, but must be thoroughly explored.
224
It is not necessary that a particular alternative offer a complete solution to all technical, economic and environmental considerations. If a portion of the original purpose of the project, or its reasonably logical subcomponent, may be accomplished by other means, then a significant portion of the environmental harm attendant to the project as originally conceived may be alleviated.
225
The fact that some reasonably related alternative might require Congressional legislation is not sufficient either to place it beyond the consideration of the agency or beyond inclusion in the impact statement.
226
Likewise, the fact that a particular alternative would require substantial coordination with another federal agency is not sufficient, in and of itself, to place its consideration beyond the requirements of NEPA.
227
There are some circumstances, such as are present in this case, in which the duty to consider alternatives takes on an even greater role than would ordinarily appear to be necessary. In those cases in which a proposed proj
*1345
ect has a nexus to a more detailed and comprehensive project, it may be necessary that an impact statement not only evaluate the effect of the proposed project, but also assess some or all of the effect of the master plan.
228
As the D.C. Circuit Court of Appeals aptly phrased this duty:
When the proposed action is an integral part of a coordinated plan to deal with a broad problem, the range of alternatives that must be evaluated is broadened. .
In the absence of assignment of the impact statement function to an agency with broader responsibility the implementation of the environmental review mandated by NEPA fell on the (sponsoring agency) when it took the first step in carrying out the broader . . . program.
229
Referring to the present suit and assuming that the nexus between Wallisville and the Trinity Project was not sufficient to require an environmental assessment of the larger project, it would still be necessary to evaluate the expected impact that the adjoining Trinity Project would have upon Wallisville. For example, the range of alternatives for Wallisville would also need to take cognizance of potential water pollution traveling downstream and collecting within the borders of the Wallisville reservoir.
A court must use reason and assess the results with an eye to practicality so as not to further tie up the governmental bureaucracy with red tape. However, a court should engage in a “substantial inquiry” to ensure that the agency has rigorously and objectively fulfilled its obligations. In the same fashion that agencies must continually update and reevaluate their policies, they must continue to reevaluate such aspects as mitigation, impact and the scope of a proposed project, even if an acceptable impact statement has been prepared, reviewed and accepted.
230
It may well be difficult as a practical matter for the courts to determine where mere consideration of an alternative is sufficient as contrasted with when actual mitigation is required. As a basic rule, if the agency has properly used its own expertise and that contributed by other expert agencies, all acting fully and reasonably within their own respective jurisdictions, then the final balance should not be disturbed, even if a court would have personally arrived at a different result.
3.
REVIEW OF ENVIRONMENTAL IMPACT STATEMENTS BY OTHER AGENCIES
a.
In General
NEPA requires sponsoring agencies, prior to the making of an impact statement, to “consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.”
231
The guidelines of the CEQ and EPA expand very little on this point, although the CEQ guidelines do provide lists of agencies arranged by indicated expertise.
232
The legislative
*1346
history reveals that Congress did not intend to delay unreasonably the processing of federal agency proposals, or that local agencies with only a remote interest in the project without concomitant primary responsibility had to be included. The information obtained, however, was to accompany the proposal through the review process.
233
This inter-agency contact must, in fact, be a true “consultation.”
234
While one of the purposes behind this requirement was to avoid obvious duplication of efforts, time, and expense,
235
it was also to ensure that the required analysis was undertaken. It could not be presumed that interested citizens or groups would have the financial and technical resources necessary for such undertakings.
236
While 30 to 45 days is usually allowed for reviewing agencies to study and comment upon a proposed project,
237
* the “and obtain” requirement of NEPA would prevent too strict an adherence to a time schedule when, for example, the impact statement was particularly large and complex, the reviewing agency was unusually swamped with review requests, or possibly even when on-site investigation or additional study was required before the reviewing agency could render an intelligent opinion.
238
This exception should be reasonably limited to an agency whose expertise appears to be particularly significant with respect to a major aspect of a project.
b.
Duties Of Other Agencies
Because NEPA obligates sponsoring agencies to use a systematic, interdisciplinary approach, the basic burden is on these agencies to seek out and contact the appropriate authorities. On the other hand, the other federal agencies may not, because of their own interdisciplinary requirements under NEPA, merely sit by until contacted by a sponsoring agency. By maintaining a check of the Federal Register, they may guard against the possibility that some sponsoring agency has failed to submit an impact statement to them through inadvertence or design when the nature of the project appears to lie within their area of jurisdiction. In short, the use of a systematic, interdisciplinary approach means what it says.
If in a given situation it reasonably appears that an on-site investigation is required before a reviewing agency may adequately exercise its expertise, then an on-site investigation is required.
239
This is likely to arise more frequently with respect to particularly large projects. Similarly, when an agency’s expertise would indicate that it should have comments upon a given proposal, then comments should be made.
240
*1347
More importantly, the range of its comments should focus upon the impact the project will have upon the environment, a determination which may require the reviewing agency’s expertise, not just whether the project will affect some other ongoing project being conducted by the reviewing agency.
241
Application of this expertise may require a myriad of activities, such as file checks, reviews of past studies, literature searches or map investigations. The reason underlying this approach is to ensure that some significant impact does not go undiscovered until too late, merely because the sponsoring agency was unaware of potential problems which the reviewing agency might suspect.
c.
Deference To Agency Expertise
The record reflects that in the course of planning Wallisville reservoir, sharp differences of opinion arose between the Corps of Engineers and other agencies which rendered opinions that, at least, arguably fell under their jurisdiction and area of expertise. For example, according to the record the Department of the Interior claims that the Wallisville Project would cause a significant reduction in the amount of fresh water discharged into Trinity Bay, a development likely to have a significant adverse effect on the saltwater commercial fishing industry.
242
The impact statement reflects that it will not be significantly reduced for the first 25 years,
243
although a Corps official, writing four weeks after the impact statement was published, approximated the reduction as being 17 to 20 percent within only a few years after the project’s completion.
244
In another matter, the Corps claims substantial recreation benefits,
245
although the Bureau of Outdoor Recreation disagrees and indicates that it would be better if the area were left undeveloped for natural recreation.
246
While the Corps has developed procedures for measuring recreation demand and benefits,
247
the record does not reflect whether they are acceptable to agencies with recreational expertise or whether they accurately measure recreational “need.”
248
For example, in 1962 the Bureau of Sport Fisheries and Wildlife computed fish and wildlife benefits for Tennessee Colony Reservoir to be $1,236,000. The Corps claimed $6,300,000, an amount criticized by the Bureau as being unsupported.
249
With respect to the
*1348
Trinity Project, in apparently that same year the District Engineer estimated hunting and fishing would increase by 4,900,000 man-days annually if the project were constructed, while the Fish and Wildlife Service estimated an increase of only 937,000 man-days. The District Engineer also estimated the general recreation increase to be 9,100,000 man-days annually, an amount approximately three times that estimated by the National Park Service. These differences led the Board of Engineers for Rivers and Harbors to comment:
Considering that the Park Service and Fish and Wildlife Service are experts in their fields, it is believed that these wide differences should be reconciled to a greater degree, or more support furnished for the estimates used.
250
Another area of disagreement appears to have arisen in the context of the benefit value to be attributed to water supply, the Department of Health, Education, and Welfare evidently setting one value while the Corps utilized a higher one.
251
Possibly one of the more critical areas pertains to the claimed damages to the saltwater commercial fishing industry if the Wallisville Project is completed as designed.
252
As the 1965 Corps’ study reported, an inclusion of these damages in the benefit-cost ratio computation might well result in a lack of economic justification for the project:
In the undefined “estuarine waters”, the Corps makes no estimate of effects, whereas the bureau estimates major losses in both commercial and sport fishing. As stated above, the bureau estimated these effects in pounds of catch and visitor days, respectively, but made no monetary estimate. Using Corps estimates of 30 cents per pound for commercial fish catch and $1.00 per visitor day for sport fishing, the bureau’s estimate of effects would result in a net annual loss of over $1.5 million for the independent operation and over $1.8 million for the system operations. Since the remaining benefits for all other purposes total $991,000 for the independent operation and $842,000 for the system operation, acceptance of the bureau’s estimate would result in an unfavorable project from an economic standpoint.
253
The Corps subsequently recomputed the claimed loss on agreed-upon rates and reduced the estimated loss from $1.5 million to $562,000.
254
Nevertheless, not even this amount was reported in the impact statement, nor was it apparently computed in the benefit-cost ratio.
255
This Court is not attempting to decide whether one position is more reasonable than another. In light of the disposition of this case, it is not necessary to do so. This Court is only concerned that the law as passed by the Congress is followed. This warrants some discussion of what NEPA requires.
Congress did not intend that a federal agency consult with another agency “which has jurisdiction by law
*1349
or special expertise with respect to any environmental impact involved” and then have its comments accompany the impact statement through the review process, only to have them ignored. This would not satisfy the requirement that agencies “utilize a systematic, interdisciplinary approach.” With all due respect to the experts acquired by the Corps of Engineers to work in the environmental sections added at both District and Division levels, their duties cannot include their substitution for the expertise of other federal agencies charged with primary duties relating to the environment. Rather, these Corps experts must serve the Corps as environmental managers to ensure that unintended impacts do not go unnoticed by engineers until it is too late in a project’s development. These officials presumably are alerted to whatever studies or inquiries need to be made, and they may evaluate comments of reviewing agencies for purposes of completeness and ensure that obvious errors in analysis are not made by such agencies. When a conflict arises between the Corps and an agency which is making an evaluation in its particular field of expertise, and when the Corps’ evaluation is based upon factors of which the reviewing agency may take cognizance, then NEPA obligates the Corps in most instances to defer to that evaluation. Only upon the presentation of clear and convincing evidence that the reviewing agency was incorrect in its assessment should the Corps adopt another evaluation; even so, this refusal to defer should not occur until after the reviewing agency has had the opportunity to review the Corps’ claimed evidence, and possibly reverse or modify its original evaluation.
The Court in
Calvert Cliffs
criticized an agency seeking to defer to water quality standards devised and administered by state agencies and approved by the federal government under the Federal Water Pollution Control Act. There the Court stated that NEPA required full consultation, but “most certainly did not authorize ¿ total abdication to those agencies. Nor did it grant a license to disregard the main body of NEPA obligations.”
256
This case does not compel a different result here, because in
Calvert Cliffs
the sponsoring agency was not seeking to defer to the considered judgment of a reviewing agency which was evaluating an environmental impact in the context of the proposed project. Rather, the sponsoring agency was seeking to defer to water permit standards based upon an entirely different set of values, namely maximum levels of acceptable pollution (as a single impact), rather than a measurement of actual total project impact.
By requiring this deference to the agency best equipped to render an expert opinion, it appears that Congress intended to provide a form of environmental “check and balance” with which federal agencies might complement one another and thereby keep the ship of state, as unwieldy as it often is, on a more steady course as “trustee of the environment for succeeding generations.”
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F.
THE WALLISVILLE ENVIRONMENTAL IMPACT STATEMENT
1.
THE DISCLOSURE
a.
In General
Because of both procedural and substantive deficiencies, it will be necessary that the Corps of Engineers prepare a new environmental impact statement, either as to Wallisville alone or for the entire Trinity Project. This will depend, as noted earlier, upon the Corps’ presentation of satisfactory proof to this Court that the project has substantial lo
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cal purposes which would favor its equitable segregation from the Trinity Project for NEPA purposes. Some of the more significant deficiencies of the present impact statement appear in the following areas:
b.
Archeological Sites
As advised by the National Park Service, the impact statement notes there are 175 identified archeological sites in the project area, 17 of which contain material of historic association and 5 of which are listed in the National Registry of Historic Places. Three of these 5 sites “will not be inundated at normal pool levels,” while the other 2 “will be inundated in the lake and may be subject to accelerated erosion by wave action.”
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The Texas State Historical Survey Committee urges that steps be taken to preserve and protect “one of the most important historic site complexes in Southeast Texas.”
259
Aside from failing to consider the total impact at one location,
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and apparently failing to contact the Advisory Council on Historic Preservation as required by CEQ guidelines,
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the impact statement is unclear as far as weighing the importance of the sites, the degree to which the affected areas may contain still undiscovered important sites, or the actual, anticipated “impact” likely to result from inundation. The question is —does it or does it not mean destruction? There is no evaluation of the effeet of floods which the Corps reports will occur from one to three times per year, nor any assessment of the effect of hurricanes on a large body of water which reportedly hit the Texas Coast on an average of every 1.7 years with occasional fifteen foot tides.
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Although there is no “cost” assigned to the loss of these archeological sites for benefit-cost purposes,
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there is no indication that protection of the sites is anticipated, even though some means are reported as being available.
264
The subject merits a full and fair inquiry, particularly since it does appear that there is concern for approximately 300 acres of oil fields which are to be protected with a ring levee.
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c.
Water Quality
The impact statement generally reports that water quality is expected to be good for the purposes intended, noting that upstream sewage and other polluted discharges are controlled b

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1471484. Public record. Not legal advice.