Full opinion text
MEMORANDUM AND ORDER CARL O. BUE, Jr., District Judge. A. 1. INTRODUCTION The complexity of this case and the substantial record submitted for review 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, 1965, and most recently in 1968. Several relate specifically to what this Court will identify as the Wallisville Project, including one published in 1961, the general design memorandum and recreational study published in 1965, and a supplement published in 1969. of central importance will be the environmental impact statement for the Wallisville Project, dated December, 1971. 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, 1967, 1968, 1969, 1970, 1971, 1972, and 1978, 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. Another party appearing 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. 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, 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. 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. The latest projected appropriation estímate for the total Trinity project to completion is $1,356,000,000. 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 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. 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. 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. 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 breeding areas of commercial species. Agencies generally concurring with the plaintiffs’ position regarding environmental aspects of the Wallisville Project include the Environmental Protection Agency (EPA) the Bureau of Sport Fisheries and Wildlife, U. S. Department of the Interior, the National Marine Fisheries Service, and the Texas Department of Parks and Wildlife. 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 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. 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 environmental 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. 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. 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. 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. 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. In 1944 and again in 1945 the House Committee on Rivers and Harbors sought to have a restudy made, but it was unable to gain sufficient congressional 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. 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. This situation apparently spurred the adoption of a restudy resolution by the Senate Committee on Public Works in 1958, which Congress acted upon favorably. 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.” 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 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. It was so identified by local residents who registered many complaints. 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.” 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. 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. As stated previously, the Wallisville impact statement notes that the primary function of the Wallisville Project is a saltwater barrier to aid navigation. While the saltwater studies were underway, local entities were interested in possibly developing water storage capabilities in conjunction with this barrier. 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. 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. Congress approved the Corps’ recommendation. 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. 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. 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. Congress conditionally approved the Trinity Project in 1965 in the following language: 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 ; . . . 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. 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.” The Corps concluded a reevaluation study of the economics for the navigation aspects and submitted it to Congress in 1968. The District Engineer’s report stated that the navigation features were “well justified”. The Southwest Division Engineer, in a one sentence endorsement, concurred in that conclusion; the acting Chief of Engineers, relying on the District Engineer’s statistics, concurred; the Bureau of the Budget stated briefly that it had “no objection” to the transmission of the report to Congress, 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. 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. 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. 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. 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. 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.” 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 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. 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. 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. 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. 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.” 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.” 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 such a loss would, in fact, occur. Accordingly, no cost for this item was taken into account in the economic analysis of the project. 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.” 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. 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.” 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.” 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.” By comparison, the criticism of the Baldauf report was slight. 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. In May, 1970, the first interim guidelines regarding statements on proposed federal actions affecting the environment were issued by the Council on Environmental Quality. 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 architect, a biologist, and an officer with chemical engineering background. In early August, 1970, the Department of Defense issued an interim set of guidelines on the preparation of environmental statements. 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. 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. 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. 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. In November, 1970, the Army Corps of Engineers disseminated a set of environmental guidelines for civil works programs. 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. On January 28, 1971, new guidelines for the preparation for impact statements were published by the Council on Environmental Quality. 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. 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). In April, 1971, further modifications to the Environmental Guidelines were issued by the Council on Environmental Quality. 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. 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.” 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. 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. 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. 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. 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. At this point the record stops. The final 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. 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. 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. 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. A majority of the better reasoned cases have generally held NEPA applicable to ongoing projects, using a variety of tests. 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.” 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. 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. 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 Wallisville 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. 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. 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. 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 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. 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. 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. As counsel for the Corps points out, the public need for water is also an essential environmental element. 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. The appended comments from the City of Houston also suggests this 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. 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. 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. 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. 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. 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.” 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. Sediment collection in the reservoir, deposited by the river, is lightly discussed in the impact statement as being “variable and unpredictable.” 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. 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, to which the water rights of the City of Houston and the Trinity River Authority are presumed to be subordinated. Also, the effect of water evaporation appears to be inadequately considered, particularly where the record indicates that it may be very substantial. 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-served for navigation purposes. 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. 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. 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. 2. SALTWATER BARRIER EFFECT Reportedly, the saltwater barrier would permit the withdrawal of 880 million gallons per day from the Trinity River without contamination. The impact statement reports that Wallisville Lake, operating in conjunction with Livingston reservoir, will prevent average annual crop damages in excess of $800,000, a figure somewhat higher than the $500,000 claimed in 1965. 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. 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, the record reflects that local interests did not seek saltwater protection until navigation expansion programs began. There apparently has been no demand for such a barrier, unrelated to navigation, since 1950. 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, and that early plans for the Wallisville Project included navigation locks sufficient to meet existing traffic. 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. Althou