772 F.

2d 1043
23 ERC 1153, 15 Envtl. L. Rep. 20,998

SIERRA CLUB, Hudson River Fishermen's Association, NYC

Clean
Air Campaign, Inc., the Hudson River Sloop Clearwater, Inc.,
the City Club of New York, Business for Mass Transit,
Committee for Better Transit, Inc., West 12th Street Block
Association, Friends of the Earth, Otis Burger, Mary Rowe,
and Howard Singer, Plaintiffs-Appellees,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, John
Marsh, as
Secretary of the Army of the United States, E.R. Heiberg,
III, as Chief of Engineers, Fletcher H. Griffis, as New York
District Engineer, United States Department of
Transportation, Elizabeth Dole, as Secretary of
Transportation of the United States, Federal Highway
Administration, Raymond A. Barnhart, as Federal Highway
Administrator, United States Environmental Protection
Agency, Lee Thomas, as Administrator of the Environmental
Protection Agency, Christopher J. Daggett, as Administrator,
Region II of the Environmental Protection Agency, James L.
Larocca, as Commissioner of the New York State Department
of
Transportation, Defendants,
United States Army Corp of Engineers, Federal Highway
Administration and the New York State Department
of Transportation, Defendants-Appellants.
Nos. 304, 315, Dockets 85-6297, 85-6299.

United States Court of Appeals,

Second Circuit.
Argued Aug. 29, 1985.
Decided Sept. 11, 1985.

Howard Wilson, Asst. U.S. Atty. for the S.D. of N.Y., New York City
(Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., Marc H.
Rosenbaum, Randy M. Mastro, Asst. U.S. Attys. for the S.D. of N.Y.,
New York City, of counsel), for defendants-appellants U.S. Army Corps
of Engineers and Federal Highway Admin.
Paul J. Curran, New York City (Bruce Margolius, Kimberly A.
McFadden, Lauri A. Novick, Kaye, Scholer, Fierman, Hays & Handler,
New York City, of counsel), for defendant-appellant N.Y. State Dept. of
Transp.
Mitchell S. Bernard, New York City (Jean M. McCarroll, Butzel & Kass,
New York City, of counsel), for plaintiffs-appellees.
Before MANSFIELD, CARDAMONE and PRATT, Circuit Judges.
CARDAMONE, Circuit Judge:

A change in something from yesterday to today creates doubt. When the

anticipated explanation is not given, doubt turns to disbelief. This case is
capsulized in that solitary simile. Following review during a 30-day trial of a
remanded administrative proceeding, the United States District Court for the
Southern District of New York (Griesa, J.) entered a judgment in favor of
plaintiffs, Sierra Club and others on August 8, 1985. That judgment declared
null and void a landfill permit for the West Side Highway Project (Westway)
issued by the U.S. Army Corps of Engineers (Corps) on February 25, 1985 and
funding approvals for Westway granted by the Federal Highway
Administration (FHWA) on March 18, 1985. The judgment also permanently
enjoined defendant New York State Department of Transportation (State) from
construction of Westway.

In its 132-page opinion the district court found that the Corps' decisionmaking
process had violated the National Environmental Policy Act (NEPA), the Clean
Water Act and court orders previously issued in 1982. From this judgment the
Corps, FHWA and the State appeal and an expedited hearing was held before
us on August 29, 1985. We affirm the district court's conclusion with respect to
the inadequacy of the federal defendants' Final Supplemental Environment
Impact Statement (FSEIS), but reverse the grant by the district court of a
permanent injunction and remand the matter to the federal defendants.

To put this case in proper perspective, we outline briefly its chronology, prior

To put this case in proper perspective, we outline briefly its chronology, prior
legal proceedings, actions taken on remand and the opinion below.

I BACKGROUND
4A. Early Chronology and Prior Legal Proceedings
5

The highway portion of Westway presently proposed contemplates a mostly

underground six lane highway extending from the Battery to 42nd Street
bordering the Hudson River on the west side of Manhattan. Approval of
Westway as a link in the interstate highway system made New York State
eligible for 90 percent federal funding for the project. The redevelopment
project envisions a 93 acre park, planted on a roof covering the highway,
together with extensive residential and commercial development. The total cost
of the project is estimated to be 2 billion dollars and requires that 242 acres of
the Hudson be landfilled to complete it.

The selection of the Westway project resulted from a process of lengthy study
and consultation that began in late 1971 when the City and State of New York
requested approval of the West Side highway corridor as part of the Interstate
System. That process included discussion with a broad range of State and City
agencies and community groups, not only concerning alternatives to the
dilapidated West Side Highway, but also about methods of coordinating the
highway reconstruction with redevelopment in the deteriorating pier and
shoreline areas on the west side of Manhattan.

In April 1974 a draft environmental impact statement (EIS) was circulated for
public review. Extensive public hearings were held during the following sixmonth period for comment, and five alternatives were identified. In January
1977 a Final EIS (FEIS) was approved that selected Westway as the preferred
alternative. Later in 1977 the State filed an application with the Corps for a
dredge-and-fill permit that was issued on March 13, 1981.

Litigation brought to challenge the permit's issuance has been before us

previously. Sierra Club v. United States Army Corps of Engineers, 701 F.2d
1011 (2d Cir.1983); Sierra Club v. Hennessy, 695 F.2d 643 (2d Cir.1982). In
these two decisions we upheld essentially the district court's conclusion that the
1977 FEIS--which described the Westway area as a "biological wasteland"
(suggesting no fish lived there)--had failed to reveal to the public the possible
importance of the site as a winter habitat for juvenile striped bass. Action for
Rational Transit v. West Side Highway Project, 536 F.Supp. 1225, 1229
(S.D.N.Y.1982). At that time many experts believed the juvenile striped bass
used the Westway landfill area as an "overwintering" habitat--a place where

these young fish remained more or less constantly throughout the winter
months. 701 F.2d at 1024; 536 F.Supp. at 1246-1247.
9

Thus, in orders dated April 14 and July 23, 1982 the district court enjoined
most construction and many other activities related to Westway and set aside
the 1981 landfill permit granted by the Corps and the funding approvals
granted by FHWA. The district court in its April order included a provision
requiring the Corps to "keep records of all activities, deliberations, and
communications (including communications with the FHWA and any other
federal official or agency) which occur in relation to [the Westway] permit
application." On appeal, we affirmed "the unusual but appropriate" record
keeping order and directed the federal defendants "to make their own
independent evaluations" of the fisheries issue. Sierra Club v. United States
Army Corps of Engineers, 701 F.2d at 1048.

B. Remand
10

On April 22, 1982 the State again applied to the Corps for a landfill permit for
Westway. In October 1982 the Corps convened a workshop of experts to
discuss whether and what type of further study was necessary to resolve the
question of the fishery habitat. This workshop recommended that a 17 month
analysis be undertaken and that the program include various habitat studies. In
July 1983 a second workshop of experts was called to assess the need for
additional fisheries studies. Participants at that workshop were in agreement
that determining the severity of Westway's effect on the striped bass was a
matter beyond the state of the art.

11

Despite this uncertainty, on September 13, 1983 a decision was made by the
Corps' New York District Engineer to conduct two winters of additional study
to determine Westway's impact on the Hudson River bass. The Governor of
New York appealed this decision to the Secretary of the Army, who directed
the Corps' Chief of Engineers to determine whether a two-winter project was
necessary. A resulting task force report caused the Secretary to decide on
December 15, 1983 that although a Supplemental Environmental Impact
Statement for Westway could be prepared with existing information under the
worst-case regulations, the Corps' New York District Engineer should proceed
with a study, limited to one winter--or four months--rather than the 17 months
the workshop had recommended.

12

On May 28, 1984 the Corps and FHWA published a Draft Supplemental
Environmental Impact Statement (DSEIS or draft report). The DSEIS
concluded that the proposed Westway project landfill would cause a significant

loss of habitat to Hudson River juvenile striped bass. It stated that such loss
would be a "significant adverse impact to the Hudson River Stock of this
species." Though not critical, the SEIS continued, Westway would likely cause
"long-term repercussions" resulting in "depressed population levels for the
foreseeable future." That harm could be amplified by other projects, e.g.,
Battery Park City and New Jersey's Harbor Drift, and "the danger to the stock
and its ability to recover from the Westway loss could ultimately hinge on what
direction these other proposals take." Finally, the draft report stated it would be
"imprudent to consider any such habitat loss as projected by the Westway
landfill to be either minimal, insignificant, or sustainable at current population
levels."
13

On June 26 and 27, 1984 the federal defendants held a public hearing on the
DSEIS, at which testimony was received from hundreds of persons, including
representatives of the plaintiffs and federal, state and city officials. During the
following 45-day comment period, the Corps and FHWA received numerous
additional comments from concerned parties. Significantly, from the May 1984
publication of the DSEIS to the November 1984 publication of the FSEIS no
new data was collected.

14

In late November 1984 after having reviewed all of the comments received on
the DSEIS and having completed its analysis, the Corps issued a Final
Supplemental Environmental Impact Statement (FSEIS or final report). In that
final report the Corps concluded that the perceptible long-term decline in stock
would be difficult to discern from normal yearly fluctuations and would have
only "minor impacts" on the fishery. Even in a worst case scenario, the Corps
continued, the consequence of the landfill would still be "insufficient to
significantly impact" the commercial fishery and "though persistent, the
magnitude of the depressed population is likely to be relatively small ... and not
a critical (or even minor) threat to its well being, nor to that of the
commercial/recreational fishery."

15

After publishing the FSEIS, the Corps solicited and received further comments
that it considered before making a final permit decision. On January 24, 1985
the Corps Engineer for New York issued his Record of Decision in which he
announced his intention to grant a permit for Westway's construction. On
February 25 the Corps issued a new landfill permit for Westway and on March
18 the FHWA published its Record of Decision and also reissued its funding
approvals.

C. Opinion Below

16

On April 18, 1985 plaintiffs filed a Supplemental Complaint in this action

alleging that the landfill permit issued for Westway's construction was invalid.
The U.S. Environmental Protection Agency (EPA) was added as a defendant.

17

Judge Griesa held a seven-week trial from May 20 to July 12, 1985 to review
the agencies' decisions. At trial, the federal officials involved in issuing the
permit and their key advisors were questioned on virtually every aspect of the
decisionmaking process, including the substance of internal deliberations and
their thought processes. The district court also heard testimony from several
witnesses offered as experts, some of whom supported the Corps' fisheries
analysis and others, presented by plaintiffs, who criticized it.

18

On August 7, 1985 Judge Griesa issued his opinion in which he ruled in

plaintiffs' favor on all claims raised by them against the Corps and FHWA.
According to the district court's summary of its findings, defendants had failed
adequately to disclose the nature and purpose of Westway and had failed
adequately to support their conclusion that the impact on the striped bass
fishery would be minor. The district court held that the Corps' finding that the
landfill would have a minor impact on the striped bass was arbitrary because
the Corps had: (a) no reasoned basis for the reversal of its analysis of impacts
from the DSEIS to FSEIS; (b) improperly relied on the government's expert; (c)
failed to collect sufficient data to support its analysis; and (d) failed adequately
to consult and give full consideration to the views of federal fishery agencies.

19

As noted at the beginning, the central issue on which this case hinges is the
Corps' denial of the change that clearly emerged from its draft report to its final
report. The district court concluded that the denial was illogical and that it
failed as an explanation. Although we agree with the district court's ultimate
conclusion, we must consider the arguments raised by the federal defendants
and the State. They claim that the district court improperly conducted a de novo
review on the merits and improperly substituted its judgment for that of the
Corps on the complex fisheries issues. Additionally, defendants assert that the
trial court erred in requiring the Corps to adopt the views of federal fishery
resource agencies, and in finding that the federal defendants had not disclosed
information relating to practicable alternatives. These claims have merit. There
were errors in the district court's approach to its review of the administrative
record that require discussion.

II STATUTES INVOLVED
20

Before analyzing these matters, we examine the controlling law. This litigation

involves two federal statutes: NEPA and the Clean Water Act. The
implementation of the legislative objectives expressed in these Acts is entrusted
to the executive branch--in this case the federal defendants. We examine first
the objectives of these legislative enactments and the scope and limitations of
agency power to administer them.
A. NEPA
21

NEPA is designed to "encourage productive and enjoyable harmony between

man and his environment ... [and to] prevent or eliminate damage to the
environment...." 83 Stat. 852, 42 U.S.C. Sec. 4321. Section 102(2)(C) of NEPA
sets forth procedures to insure the achievement of these substantive purposes. It
provides:

22

The Congress authorizes and directs that, to the fullest extent possible ... (2) all
agencies of the Federal Government shall--

23

(C) include in every recommendation or report on proposals for legislation and

other major Federal actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on--

24

(i) the environmental impact of the proposed action,

25

(ii) any adverse environmental effects which cannot be avoided should the
proposal be implemented,

26

(iii) alternatives to the proposed action,

27

(iv) the relationship between local short-term uses of man's environment and
the maintenance and enhancement of long-term productivity, and

28

(v) any irreversible and irretrievable commitments of resources which would be

involved in the proposed action should it be implemented.

29

Congress' aim under Sec. 102(2)(C) is to force federal agencies to consider

environmental concerns early in the decisionmaking process so as to prevent
any unnecessary despoiling of the environment. The "detailed statement by the
responsible official" is procedurally required because its presence evidences the
fact that environmental consequences were factored into the planning stage of
agency deliberation. Andrus v. Sierra Club, 442 U.S. 347, 350-51, 99 S.Ct.

2335, 2337-38, 60 L.Ed.2d 943 (1979). The object is for an agency to reach a
decision only upon which it is fully informed and only after the decision has
been well-considered. Vermont Yankee Nuclear Power Corp. v. NRDC, 435
U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). The "detailed
statement" thus helps a reviewing court to decide whether an agency has met
that objective. It serves further as an environmental full disclosure law so that
the public can weigh a project's benefits against its environmental costs. To that
end it must be written in clear, understandable language. Perhaps most
important, the detailed statement insures the integrity of the agency process by
forcing it to face those stubborn, difficult-to-answer objections without
ignoring them or sweeping them under the rug. Silva v. Lynn, 482 F.2d 1282,
1284-85 (1st Cir.1973).
30

The Council on Environmental Quality (CEQ) has adopted regulations

implementing NEPA contained in 40 C.F.R. Parts 1500-1508. The Corps has
promulgated regulations set forth in 33 C.F.R. Part 230 that are designed to
supplement the CEQ final regulations. Under Sec. 230.11 of the Corps'
regulations a draft EIS is required. A draft EIS must "fulfill and satisfy to the
fullest extent possible the requirements established for final statements in
section 102(2)(c) of the Act." 40 C.F.R. Sec. 1502.9(a).

B. Clean Water Act

31

Policy goals similar to those contained in NEPA are expressed in the Clean
Water Act of 1977, particularly for the protection and propagation of fish. 33
U.S.C. Sec. 1251(a)(2). This Act grants authority to the Secretary of the Army,
after notice and opportunity for public hearings, to issue a permit for dredged or
fill material to be discharged into navigable waters. 33 U.S.C. Sec. 1344(a).

32

Regulation of the discharge of dredged or fill material has been entrusted to the
Corps and to the EPA. The Corps has the responsibility for issuing or denying
permits for such discharge. See 33 U.S.C. Sec. 1344(a). The EPA develops
guidelines governing the issuance of a permit, see Id. Sec. 1344(b)(1). The EPA
promulgated the 404(b)(1) Guidelines that are set forth in 40 C.F.R. Part 230.
Under these regulations, if a proposed landfilling does not comply with the
Guidelines, the Corps must deny a permit. 49 Fed.Reg. 39479 (Oct. 5, 1984)
(adding section 323.6(a) to 33 C.F.R. Part 323). The Guidelines further prohibit
landfilling "unless it can be demonstrated" that the activity will not have an
"unacceptable adverse impact" on the aquatic ecosystem. See 40 C.F.R. Sec.
230.1(c). Under the regulations, "unacceptable adverse effect" is defined as an
"impact on an aquatic or wetland ecosystem which is likely to result in ...
significant loss of or damage to fisheries...." Id. Sec. 231.2(e). Thus, to comply

with the Guidelines, an applicant must demonstrate that the proposed project
will not likely result in significant loss of or damage to fisheries.
III SCOPE OF REVIEW
33

Since judicial review is not specifically provided for under either NEPA or the
Clean Water Act, review is under the Administrative Procedure Act, 5 U.S.C.
Sec. 706. Under that law challenged agency action must be set aside if found to
be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. Secs. 706(2)(A).

A. Review Under NEPA

34

When reviewing an administrative decision made under NEPA, the purpose is

to ensure that the agency has considered the environmental consequences of its
proposed action. Strycker's Bay Neighborhood Council v. Karlen, 444 U.S.
223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980). To conform with NEPA,
a reviewing court need only find that the agency considered the environmental
consequences of its proposed actions. An agency making a decision under this
statute does not have to accord environmental concerns any more weight in the
decisionmaking process than other appropriate concerns. If an agency decides
that the economic or social benefits of a project outweigh its environmental
costs, its choice must be affirmed so long as the procedural requirements of
NEPA were followed, that is, environmental consequences were considered. Id.
at 227, 100 S.Ct. at 499.

35

In weighing whether an agency has met NEPA's expressed objectives the test is
not whether the district court, this Court or even the Supreme Court would have
reached the decision under review had we been decisionmakers within the
agency. Rather, the judicial role is relegated to affirming the agency's decision
so long as a rational basis is presented for the decision reached. Bowman
Transportation Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 290,
95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974). Consistent with our concept of
federalism, a reviewing court's scope is so limited because it may not "interject
itself within the area of the executive as to the choice of the action to be taken."
Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49
L.Ed.2d 576 (1976).

B. Review Under the Clean Water Act

36

The purpose of judicial review under the Clean Water Act differs slightly
because of its enabling statute. Like NEPA, the Clean Water Act requires that

an environmental concern--here the impact on the aquatic environment--be

considered at an early enough stage in the policymaking process to affect the
agency decision. But the Clean Water Act provides for a more intrusive power
of review, one whose purpose is to prohibit agency action whenever certain
environmental impact thresholds are met. Instead of simply insisting
procedurally that the agency weigh environmental concerns, the Clean Water
Act specifically prohibits an agency from sanctioning a project that it finds will
have a significant adverse impact on the marine environment. Therefore, when
an agency approves a project that the record before a reviewing court reveals
will have a significant adverse impact on marine wildlife, the agency
determination must be reversed.
C. Review in General
37

In the past, as Dean Landis noted, there may have been a sense of contest
between courts and administrative agencies because courts are not unaware that
vast areas of government formerly within their control have been handed over
to administrative agencies. J. Landis, The Administrative Process, 123 (1938).
Fact-finding by trained and specialized administrators, provided that it is
reasonable looking at the whole record, is now firmly established. Congress has
excluded the courts from the fact-finding process and any attempt to turn the
clock back and renew the contest by reinsinuating the judiciary into the area
now reserved to executive expertise should be sharply rejected. The power of a
court in effectuating the purpose of judicial review generally is narrowly
drawn. Courts must defer to the action taken by the agency, which is presumed
to be valid. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91
S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). Within these bounds, a reviewing court
must undertake a searching inquiry to ascertain whether the agency has given
reasons that connect the facts it found to the choice made. To permit intelligent
judicial review an agency must indicate the basis on which it exercised its
expert discretion. SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 46263, 87 L.Ed. 626 (1943).

38

Normally, an agency's action is held to be arbitrary and capricious when it

relies on factors Congress did not want considered, or utterly fails to analyze an
important aspect of the problem, or offers an explanation contrary to the
evidence before it, or its explanation--as is apt here--is so implausible that it
cannot be ascribed to differing views or agency expertise. See Motor Vehicles
Mfrs. Assn. v. State Farm Mut., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77
L.Ed.2d 443 (1983). While a reviewing court may not supply the basis for the
agency's decision--lest it interfere with matters entrusted to the executive
branch--it will uphold a decision of less than ideal clarity if the "path which

[the agency] followed can be discerned." Colorado Interstate Gas Co. v. FPC,
324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945). See SEC v.
Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947).
With the recited rules of review in mind, we discuss the issues raised on this
appeal.
IV DE NOVO REVIEW BY THE DISTRICT COURT
39

Title 5 U.S.C. Sec. 706(2)(F) requires that "[t]he reviewing court shall--hold
unlawful and set aside agency action, findings, and conclusions found to be-unwarranted by the facts to the extent that the facts are subject to trial de novo
by the reviewing court." "[De] novo review is appropriate only where there are
inadequate factfinding procedures in an adjudicatory proceeding, or where
judicial proceedings are brought to enforce certain administrative actions."
Camp v. Pitts, 411 U.S. 138, 141-42, 93 S.Ct. 1241, 1243-44, 36 L.Ed.2d 106
(1973) (per curiam) citing Citizens to Preserve Overton Park v. Volpe, 401 U.S.
at 415, 91 S.Ct. at 823. This case raises neither of these two instances. The
permit determination is not adjudicatory and the Sierra Club did not bring this
litigation in support of the Corps' actions.

40

In contrast plenary review, which is more limited than de novo review, is

permitted when the agency's record is so sparse as to make judicial review
ineffectual. Courts cannot intelligently perform their reviewing function if an
administrative record is inadequate, incomplete or, as here, inconsistent. Pitts,
411 U.S. at 142, 93 S.Ct. at 1244. As a consequence, through plenary review a
district court may "obtain from the agency, either through affidavits or
testimony, such additional explanation of the reasons for the agency decision as
may prove necessary." Id. at 13, 93 S.Ct. at 1244. See also, Citizens to Preserve
Overton Park v. Volpe, 401 U.S. at 420, 91 S.Ct. at 825; County of Suffolk v.
Secretary of Interior, 562 F.2d 1368 (2d Cir.1977), cert. denied, 434 U.S. 1064,
98 S.Ct. 1238, 55 L.Ed.2d 764 (1978); Natural Resources Defense Council Inc.
v. Callaway, 524 F.2d 79 (2d Cir.1975); Environmental Defense Fund v.
Costle, 657 F.2d 275, 284 (D.C.Cir.1981).

41

The district court here undertook de novo review. By allowing the plaintiffs to
call their own expert witnesses, and by substituting those witnesses'
interpretation of the data for the views of the experts that the Corps had relied
upon, the district court moved from a plenary "filling in" of holes in the Corps
presentation to a de novo hearing on the fisheries issue.

42

Ordinarily, such de novo review would be an error requiring reversal. We do

not approve such review by a district court whenever it believes that an

administrative record is incomplete. But this abuse of discretion is not

reversible error in the instant case. There are two reasons for us to so conclude.
First, through its own actions, the Corps violated the prior recordkeeping order;
this made judicial review ineffectual and further weakened the Corps'
credibility regarding its decisions on Westway. Second, absent an explanation
for the change from the DSEIS to the FSEIS, the administrative record did not
support the granting of a permit, inasmuch as the DSEIS recited the significant
adverse impact to the striped bass making the permit's issuance plainly in
violation of the Clean Water Act.
43

Further, we observe that if the FSEIS had been published as the initial product,
we might have concluded that it did address the issues and presented a reasoned
judgment that the landfill impact of Westway would have a minimal effect on
the juvenile striped bass. But we are not writing on a clean slate and are unable
to blind ourselves to what happened in the past. After our 1983 decision
upholding rejection of the first FEIS, we directed the Corps to reexamine the
striped bass problem and to keep careful records. Again, if the Corps had kept
such records and in reassessing the data had found reasonable grounds to reach
this remarkably changed conclusion, it might have been persuasive. Instead, the
Corps attempted to convince the district court and us that there was no change,
and that the language of the draft report and the final report meant the same
thing.

44

The Corps' attempted to defend this position by arguing that in using the word
"significant" in the DSEIS it was employing a term of art that is defined as
"measurable but minor." Yet the 404(b)(1) Guidelines state that:

45

Except as provided under section 404(b)(2), "no discharge of dredged or fill

material shall be permitted which will cause or contribute to significant
degradation of the waters of the United States ... Under these Guidelines,
effects contributing to significant degradation ... include:

46

(1) Significantly adverse effects of the discharge ... on human health or welfare,
including but not limited to effects on ... fish, shellfish, wildlife, and special
aquatic sites.

47

(3) Significantly adverse effects ... on aquatic ecosystem diversity,

productivity, and stability. Such effects may include, but are not limited to, loss
of fish and wildlife habitat...."

48

40 C.F.R. Sec. 230.10(c) (emphasis supplied).

49

Plainly, the word "significant" as used in the regulatory context under which
the Corps operates means important, major or consequential. Moreover, the use
of the word "significant" signals that the issuance of a landfill permit would be
a violation of the Clean Water Act. No court should allow the use of semantics
to succeed in an attempt at glossing over an environmental violation. Neither
Judge Griesa nor we are required to defer to the Corps' Orwellian-like
"doublespeak," particularly when it is remembered that a primary purpose of
these reports is to inform the public and provide a basis for future
environmental decisions by other governmental agencies. Thus, the change
from "significant adverse impact" to "minor impacts" required an explanation
and that explanation should have been in the final report. Neglecting to include
it illustrates again the insight of Franklin's maxim that "a little neglect may
breed great mischief." B. Franklin, Maxims ... Prefixed to Poor Richard's
Almanac (1758).

50

In sum, once the district court was satisfied that there was an illogical change,
unexplained in the final report, and unjustified by the administrative record
when read in the context of the history of these proceedings, the district court
should at that point have remanded the matter to the Corps to revise its FSEIS
by including an explanation. At most, the district court should have held a brief
plenary hearing to obtain an explanation. Thus, there was no need for the
protracted evidentiary hearing conducted by the trial court, particularly in view
of the fact that the result reached after such lengthy trial was the same as that
which could have been reached earlier. But regardless of the propriety of its
entering upon a lengthy trial de novo, we agree with the district court's
conclusion that the FSEIS did not satisfy the requirements of either NEPA or
the Clean Water Act.

V SUBSTITUTION BY THE DISTRICT COURT OF ITS JUDGMENT

51
52

Here the district court impermissibly substituted its judgment for that of the
Corps and the FHWA. In some respects the Corps brought this on itself. In
1977 when it authored its first final EIS, it adopted a conclusion that there was
no Hudson River fish life in the proposed Westway landfill area. To say the
least, this was an understatement. More accurately it could be characterized as
false. The federal defendants were properly charged with this deviation from
their duty to present facts, not fiction, in support of their choice. The Corps'
careless presentation prompted the district court in its April 14, 1984 order to
take the unusual step of directing it to keep records of all "activities,
deliberations and communications" during any reconsideration of the Westway
landfill permit.

53

Perhaps the trial court's dissatisfaction with the Corps' failure to abide by the
earlier record keeping order drew the trial judge too deeply into the executive
agency's privileged internal processes. Whatever the reason, the district court
exceeded its power of review by evaluating and finding the Corps' expert
witness not credible. It took testimony from other purportedly expert witnesses
and found that they possessed a "high degree of expertise" and that their
knowledge of the fisheries issue was "profound" and in "sharp contrast" to the
Corps' expert.

54

Moreover, when the Secretary of the Army decided to conduct a four instead of
17 month study of the bass, the trial court found it inadequate. But, the
defendants' decision that essentially balanced the quality of the data sought to
be obtained against the cost of acquiring it, is one that lies peculiarly within the
agency's discretion. In undertaking to weigh the relative merits of scientific
evidence on the fisheries issue and finding the study time inadequate, the
district court improperly decided substantive issues and impermissibly
interjected itself into an area reserved to the executive agency.

VI REMAINING ISSUES
A. Consideration of the Views of the Resource Agencies
55
56

In addition, it appears from the summary of its findings that the district court
apparently concluded that the Corps failed to give adequate consideration to the
views of the U.S. Fish & Wildlife Service, National Marine Fisheries Service,
the U.S. Environmental Protection Agency and the New York Department of
Environmental Conservation, the state agency responsible for fish and wildlife.
All of these agencies were opposed to granting the landfill permit and
recommended to the Corps that it be denied.

57

The "public interest review" regulations require that the Corps give "full
consideration" to these agencies' views "in deciding the issuance, denial, or
conditioning of individual or general permits." 33 C.F.R. Sec. 320.4(c). 49
Fed.Reg. 39482 (October 4, 1984). Under these regulations the Corps is not
bound to agree with the conclusions reached by these resource agencies, but
simply required to listen to and consider their views in the decisionmaking
process. See, e.g., Corps of Engineers v. National Marine Service, Inc., 764
F.2d 445, 452 (7th Cir.1985); Sierra Club v. Alexander, 484 F.Supp. 455, 46970 (N.D.N.Y.), aff'd without opinion, 633 F.2d 206 (2d Cir.1980). The trial
judge recognized this when he stated that "the Corps was not required to accept
the views of these agencies as binding, but serious consideration was
warranted."

58

In this case, the Corps solicited the other federal and state resource agencies'
views, encouraged their participation in the remand process, and gave full
consideration to their comments on both the DSEIS and FSEIS, all of which is
evident from the detailed responses that the Corps prepared in assessing those
agencies' comments. Thus, that consideration called for under the cited
regulations was given. We see no need to comment further on this issue since
despite the district court's statement it actually made no direct finding that the
Corps did not seriously consider the contrary scientific opinions expressed by
the resource agencies. In any event, the record is plain that it did.

B. Disclosure of Information Relating to Practicable Alternatives to Westway

59
60

The district court found that the FSEIS did not "fairly disclose the issue" of
Westway to the public. The particular omission cited in the ruling was a
presentation of whether vast sums of money should be spent to build a six-lane
highway and redevelopment project as opposed to revitalizing an existing road
for a modest sum ($46 million), with a substantial "trade-in" of federal funds to
be used for mass transit. Under NEPA, exhaustive detail regarding reasonable
alternatives is not called for, rather only the furnishing of that information
needed to "enable those who did not have a part in [the EIS] compilation to
understand and consider meaningfully the factors involved" is necessary.
County of Suffolk, 562 F.2d at 1375.

61

The short answer is that the FSEIS met NEPA's test with respect to setting forth
reasonable alternatives to the highway project. Although there were no
reasonable alternatives suggested to the redevelopment aspect of Westway, a
great deal has already been publicly reported on that score. In fact, this
vigorously contested litigation over a proposed public works project of the
scope and notoriety of Westway has generated paper by the ton and ink by the
carload. To believe that the public has remained somehow uninformed about
the alternative of a smaller-scale road with the possibility of trade-in funds in
lieu of federal Westway funding is farfetched. As the trial judge found that
reasonable alternatives were set forth in the FSEIS, even though he viewed
them "by no means emphasized," his responsibility on this issue ended. The
further lengthy analysis, fact-finding and conclusions reached exceeded the
district court's boundaries of limited review with respect to an executive
agency's choice and, as such, constituted an abuse of discretion.

VII PERMANENT INJUNCTION

62

We further hold that issuing an order permanently enjoining the construction of

Westway was an abuse of the district court's discretion. It is not within the

power of the judiciary to bar an executive agency from making administrative

decisions, assuming full, good faith compliance with the requirements of NEPA
and the Clean Water Act. No authority exists to support the granting of such
drastic relief. On the contrary, the Supreme Court has repeatedly held that if an
administrator's action is not "sustainable on the administrative record ... then
the ... decision must be vacated and the matter remanded ... [to the
administrator] for further consideration." Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, 435 U.S. at 549, 98 S.Ct. at 1214;
Federal Power Commission v. Transcontinental Gas Pipe Line Corp., 423 U.S.
326, 331, 96 S.Ct. 579, 582, 46 L.Ed.2d 533 (1976) (per curiam); Camp v.
Pitts, 411 U.S. at 143, 93 S.Ct. at 1244.
63

Since a court's review of administrative choices under NEPA and the Clean
Water Act focuses primarily on the procedural regularity of the decision, it is
not for the courts to tell the executive branch what projects they may or may
not consider or how much of the taxpayers' money should be expended in an
attempt to "get it right."

VIII CONCLUSION
64

We affirm the district court's conclusions that the proferred denial of the
change from "significant adverse impact" in the DSEIS to the "minor impact" in
the FSEIS was a post-hoc rationalization unworthy of belief by this Court and
that the Corps had failed to provide any reasoned explanation for the change.
Nonetheless, we do not agree with the dissenter that additional field studies of
the Hudson River Fishery would be required before the Corps on remand could
properly grant a permit. Perhaps a fresh look at the collected data could
produce a clear, logical and good faith explanation for the change. Such an
effort could be plausibly advanced as within the federal defendants' discretion.

65

Affirming the voiding of the permit may result in condemning the Westway
project to oblivion. Some will cheer that distinct possibility; others will cry over
the loss of projected public benefits. The State, having no part in the failure to
keep the ordered records nor responsibility for preparation of the draft and final
environmental reports, may count this decision a far-reaching loss. Whether this
or any court is happy with the result we reach is a matter of little or no note.

66

Under the statutory scheme and the Constitution, our concern is not with the
fate of Westway. Congress has decreed that such a project may not proceed
without an acceptable environmental impact statement. Congress' intense
concern with the environment is perhaps best capsulized in its belief that man
and nature are so intimately connected that to significantly degrade the waters

of a river threatens not only the fish, but ultimately man as well. Thus, to forge
ahead with the project--gambling on the loss of this major east coast fishery
resource--may result in even greater loss. In any event, the reasons given for
issuing a permit for dredging and filling 242 acres of the Hudson River now
used by juvenile striped bass at least as a transitory habitat, do not reasonably
connect the data found by the federal defendants to the choice they made.
Therefore, the decision to issue the permit was arbitrary and capricious.
67

Accordingly, insofar as the judgment appealed from vacated the issuance of the
federal defendants' landfill permit and the associated funding, it is affirmed.
Insofar as the judgment granted a permanent injunction, it is reversed. In view
of the publicized time constraints facing the State of New York, this matter is
remanded directly to the federal defendants for whatever action they may now
deem advisable. The mandate of this Court shall issue forthwith.

68

MANSFIELD, Circuit Judge (concurring in part and dissenting in part):

69

The record demonstrates that Westway, a long-range project that may well be
in the public interest, has ironically been "roadblocked" by the U.S. Army
Corps of Engineers, the very agency that might, if it had complied with its
duties under the National Environmental Policy Act (NEPA) and the Clean
Water Act (CWA), have paved the way for its construction. Despite the
blueprint offered by our thorough analysis of its earlier errors, see Sierra Club
v. United States Army Corps of Eng., 701 F.2d 1011 (2d Cir.1983) (Sierra Club
), the Corps has simply repeated them upon remand, presenting us with all the
aspects of a deja vu.

70

In its initial EIS, the Corps tried to sweep under the rug evidence indicating that
there were "significant numbers of fish in the interpier area", id. at 1023, and
that the area might be an important fisheries habitat. Instead it described the site
as a "biological wasteland", id. at 1019. Then, after we remanded with
directions to comply with NEPA and the CWA, it concluded in its DSEIS that
the proposed landfill of the interpier area would have a "significant adverse
impact" on the Hudson River fishery, 2 DEIS at 42. That conclusion would
have required denial of a landfill permit under the CWA. 40 C.F.R. Secs.
230.10(c), 231.2(e). Six months later, however, without any explanation or new
relevant evidence, it turned full circle and concluded in its FSEIS that the
impact would be "minor" and insignificant. 2 FEIS at 50-51, 65-66. This
arbitrary, unreasoned flip-flop, exacerbated by the Corps' defiance of our
record-keeping order, clearly violated NEPA and the CWA. Indeed, the Corps
has virtually repeated the remarkably similar failure to explain a dramatic swing
in its views that we found to violate NEPA in Natural Resources Defense

Council, Inc. v. Callaway, 524 F.2d 79 (2d Cir.1975) (change of ocean site for
dumping of dredged material).
71

I agree that the proper remedy is not an injunction but a remand to the Corps
for further proceedings in compliance with its statutory obligations. The
Supreme Court has made it clear that if an administrator's action is not
"sustainable on the administrative record ... then the ... decision must be
vacated and the matter remanded ... [to the administrator] for further
consideration." Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55 L.Ed.2d 460
(1978) (quoting Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36
L.Ed.2d 106 (1973) (per curiam)). See also Federal Power Commission v.
Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331, 96 S.Ct. 579, 582, 46
L.Ed.2d 533 (1976) (per curiam).

72

I must respectfully dissent, however, from the majority's holding that the
district court's review of the Corps' decision was entirely de novo and an abuse
of discretion which may be excused only because of the Corps' violation of our
record-keeping order and the unexplained inconsistency between the DSEIS
and the FSEIS. In my view, although a portion of the district court's scrutiny of
the Corps' conduct was an improper de novo review, most of its examination
was fully within its power, under the Administrative Procedure Act, to review
an agency's conduct for the purpose of determining whether the agency had
complied with the procedural requirements of NEPA and CWA.

73

"De novo " review is substantive in character. It occurs when a court refuses to
defer to an administrative body's decision but, starting afresh, conducts an
evidentiary hearing for the purpose of deciding what decision the agency
should have reached. In essence the court substitutes its view of the merits for
that of the agency. Camp v. Pitts, supra, 411 U.S. at 142, 93 S.Ct. at 1244;
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414-15, 91 S.Ct. 814,
822-23, 28 L.Ed.2d 136 (1971). A de novo review is permissible only "when
the action is adjudicatory in nature and the agency fact finding procedures are
inadequate [or] ... when issues that were not before the agency are raised in a
proceeding to enforce non-adjudicatory agency action." Id. at 415, 91 S.Ct. at
823. See also Camp, supra, 411 U.S. at 142, 93 S.Ct. at 1244. It is not
warranted by an agency's "failure to explain administrative action." Id. at 14243, 93 S.Ct. at 1244.

74

On the other hand, under NEPA and CWA a court is empowered to make a
procedural or plenary review to insure that an agency has complied with each of
the steps required of it by relevant statutes and regulations and "has taken a

'hardlook' at environmental consequences" of its actions. Kleppe v. Sierra Club,

427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). See
also Sierra Club, supra, 701 F.2d at 1029. Implicit in that obligation is a duty to
make an adequate compilation of relevant information, to analyze it reasonably
and, perhaps most importantly, not to ignore "pertinent data." Id. at 1029.
75

A procedural review is called for when the administrative record or evidence

proffered by others suggests that the agency has violated its basic duties under
NEPA. It is triggered when the record (1) fails to disclose the reasons for the
agency's action, Camp, supra, 411 U.S. at 143, 93 S.Ct. at 1244; Overton Park,
supra, 401 U.S. at 420, 91 S.Ct. at 825; (2) fails to show that the agency
obtained and adequately considered available, relevant, material evidence,
Sierra Club, supra, 701 F.2d at 1029; or (3) demonstrates that the EIS contains
some glaring sin of omission or other defect, County of Suffolk v. Secretary of
the Interior, 562 F.2d 1368, 1384 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98
S.Ct. 1238, 55 L.Ed.2d 764 (1978). In considering whether the nature and
depth of the agency's investigation was adequate this court looks to a range of
factors, including "(1) whether obtaining more detailed useful information on
the topic ... is 'meaningfully possible' ... and (2) how important it is to have the
additional information." County of Suffolk, supra, 562 F.2d at 1378. In short,
the court considers, among other factors, the importance and weight of the
additional evidence, the difficulty and cost involved in obtaining it, and the
extent to which it would be merely cumulative.

76

Obviously, because a procedural review considers how the administrative

record was developed and whether, once developed, it was complete, judicial
scrutiny of the agency's activities is not limited to the record alone. Camp,
supra, 411 U.S. at 143, 93 S.Ct. at 1244; Overton Park, supra, 401 U.S. at 420,
91 S.Ct. at 825. Rather, the courts may conduct "a thorough, probing, in-depth
review" of what the agency did and why. Id. at 415, 91 S.Ct. at 823. To do so it
may "obtain from the agency, either through affidavits or testimony, such
additional explanation of the reasons for the agency decision as may prove
necessary," Camp, supra, 411 U.S. at 143, 93 S.Ct. at 1244, and "require the
administrative officials who participated in the decision to give testimony
explaining their action." Overton Park, supra, 401 U.S. at 420, 91 S.Ct. at 825.
As we have recognized time and again:

77
"[A]llegations
that an EIS has neglected to mention a serious environmental
consequence, failed adequately to discuss some reasonable alternative, or otherwise
swept 'stubborn problems or serious criticism ... under the rug' ... raise issues
sufficiently important to permit the introduction of new evidence in the district court
... in challenges to the sufficiency of an environmental impact statement ..." Citizens

for Balanced Environment v. Volpe, 650 F.2d 455, 461 (2d Cir.1981) quoting
County of Suffolk, supra, 562 F.2d at 1368).
78

A procedural review, however, has firm borders. It is deep, but not broad. The
court may, for example, judge the credibility of witnesses, but only as their
testimony affects procedural issues. It may not substitute its view of the merits
or of "the choice of action to be taken" for the agency's. Strycker's Bay
Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62
L.Ed.2d 433 (1980) (per curiam); Vermont Yankee, supra, 435 U.S. at 558, 98
S.Ct. at 1219. It is the agency's province to decide what the executive should do
and the court's function to insure that the decision was rooted in careful
consideration of all relevant factors and reached only after the relevant evidence
and agency's rationale were put before the public. Sierra Club, supra, 701 F.2d
at 1029.

79

Applying these principles here, I cannot agree with the majority that Judge
Griesa's evidentiary hearing amounted entirely to an impermissible de novo
review of the Corps' conduct. (See Maj.Op. 1052). Indeed, if that were the case,
Camp and Overton Park would require us to reverse his decision, not affirm it in
substantial part.

80

In my view the district court conducted a permissible procedural review of

certain matters: (1) the Corps' unexplained "flip-flop" in which it adopted a
FSEIS that reached conclusions that were diametrically opposed to those stated
in its DSEIS without any rational explanation for the about-face, (2) the Corps'
failure to follow its consultants' almost unanimous recommendation that it
obtain a 17-month, 2-winter study of the relevant fishery habitat before
deciding whether Westway would have a significant adverse effect on the
fishery; (3) the Corps' failure to explain why it did not use the "overwintering"
theory in its "worst case" analysis of fishery impact, and (4) the claim that the
FSEIS made an inadequate disclosure of whether any alternatives existed that
would provide the redevelopment benefits offered by Westway. On the other
hand, I agree with the majority that Judge Griesa made an impermissible de
novo review of whether the Corps failed to consult adequately with the United
States Fish and Wildlife Service (FWS), the National Marine Fisheries Service
(NMFS), and the New York Department of Environmental Conservation.

81

Although I agree with the majority opinion's analysis of the Corps' failure to
explain its radical change of mind between the DSEIS and FSEIS, I part
company from the majority when it comes to the plaintiffs' contention that the
Corps' failure to conduct a 17-month study constituted a failure to gather all
data necessary to enable it intelligently to decide what impact Westway would

have on the fishery. In my view this attack on the adequacy of the FSEIS is
meritorious.
82

With near unanimity, the Corps' consultants called for, at least, a 2-winter
study. Following the earlier remand of this case to the Corps, Malcolm Pirnie,
Inc. was retained by the Corps to analyze existing fishery data with respect to
the Westway area and to recommend whether additional fishery studies were
needed to determine how many fish used that area and their movements. It
produced a report recommending two studies: (1) a fish sampling program for a
minimum of three years, and (2) a habitat survey for a minimum of one year.
At meetings of the Corps, Malcolm Pirnie, Inc., the NMFS, the FWS and the
Environmental Protection Agency (EPA), it was agreed that the study could be
reduced to two winters and still gather enough data. The Corps then convened a
workshop of leading experts in striped bass ecology, sampling design, statistics
and hydro-acoustics to consider the matter and, after thorough review and
further consultation with the FWS, NMFS and the EPA, it was the unanimous
view of all that there should be a 17-month, 2-winter study of the fishery
habitat during the period from December 1982 to April 1984, to determine how
many fish used the Westway site and their movements.

83

When the New York Department of Transportation objected to the proposed

study, Col. Fletcher H. Griffis, District Corps Engineer, in July 1983 convened
a second workshop of some 39 persons, including representatives of the Corps,
FWS, NMFS, EPA, New York Department of Conservation, New Jersey
Department of Environmental Protection and many of the independent experts
who had attended the 1982 workshop. A majority of the participants approved
the 1982 proposal for a 17-month, 2-winter study, which would commence in
December 1983. The Governor of New York, however, registered his objection
with the Secretary of the Army, and Col. Griffis' decision to go forward with
the study was in short order countermanded, without explanation, by the Chief
of Army Engineers, based on the conclusion of a specially selected Task Force
that did not include any of the experts who had favored the 2-winter study.
Accordingly, the Corps was only permitted to make a study lasting through the
remainder of the 1983-84 winter, i.e., from December 1983 to April 1984.

84

If the Corps had implemented its own original 1982 proposal for a 17-month, 2winter study, that study could have been completed by April 1984. Instead, the
truncated study left crucial questions unanswered, demonstrating that the
advocates of the 17-month study had been correct. The role Westway played in
the bass' life cycle, where the bass went when they were not in the area, and
how often they used it, were left unresolved. Another winter's study would have
allowed the Corps to use tagging and recapture procedures to gather reliable

data to replace the speculation with which it answered these crucial questions in
the DSEIS and FSEIS. In my view, the Corps' failure to obtain this pertinent
evidence rendered its FSEIS inadequate, incomplete and a violation of NEPA.
85

Perhaps the clearest illustration of how the Corps' failure to get essential facts
tainted the environmental impact statements was its elimination of the
"overwintering" theory as a base for its "worst case" analysis. 40 C.F.R. Sec.
1502.22(b)'s requirement that the Corps carry out a worst case analysis
"requires [that] impact statements, at a minimum, contain information to alert
the public and Congress to all known possible environmental consequences of
agency action." Forty Most Asked Questions Concerning CEQ's NEPA
Regulations, 46 Fed.Reg. 18,026, 18,032 (1981) (answer to Question 20b)
(emphasis in original). See also Sierra Club v. Sigler, 695 F.2d 957, 971-72 (5th
Cir.1983). In preparing its worst case analysis, however, the Corps dismissed
the possibility that bass overwinter in Westway and adopted the "migratory
theory," which assumed that the bass leave Westway and move out to sea in
mid-winter. The Corps' study, however, had found few juvenile bass in the
areas to which they had supposedly migrated but showed, on the contrary, that
significant numbers of the fish were in Westway throughout the winter. It is
ludicrous to think that the Corps fulfilled its obligation to produce a worst case
analysis when it rejected, in the face of such contradictory evidence, the
possibility that the bass over-wintered in, rather than migrated through,
Westway. The district court's findings that the Corps did not give "full
consideration" to the views of the FWS, NMFS and EPA, and that the FSEIS
improperly enlarged the scope of Westway and failed to consider alternatives to
its redevelopment aspects, stand on a different footing. With respect to the
latter, Judge Griesa's conclusion is at odds with the evidence. Whether one
labels his review "de novo" or "procedural," his findings are not supported by
substantial evidence but, on the contrary, are plainly wrong. In addition, the
record reveals that the Corps considered the views of all other relevant
agencies; Judge Griesa's decision that its consideration was inadequate
amounted to an impermissible substitution of his view for the discretion vested
in the Corps.

86

Lastly, I believe it will be well nigh impossible upon remand for the Corps,
having already found in its DSEIS on the present record that Westway would
have a "significant adverse impact" on the Hudson River fishery, to explain
another about-face without obtaining additional evidence as to the quantity and
movements of fish in the estuary. Some may view the resultant delay as an
unfortunate blow to New York City's future. If it is, the statutory provisions by
which we are governed, as construed by the Supreme Court, leave little doubt
that the remedy, short of further field study by the Corps, lies with Congress,

not the courts.