Full opinion text
MEMORANDUM OF DECISION READY, Chief Judge. In 1971 a group of environmentalists challenged the validity of the TennesseeTombigbee Waterway (TTW), a navigational project in Alabama and Mississippi which Congress authorized in 1946. The original complaint, asserting six causes of action for alleged violation of various statutes, was dismissed with prejudice by the district court. EDF v. Corps of Engineers, 348 F.Supp. 916 (N.D.Miss.1972). The Fifth Circuit on appeal affirmed, 492 F.2d 1123 (1974), and certiorari was not sought. Now, six years later and after the project is estimated to be about 29% complete and Congress has appropriated almost $600,000,-000 toward the construction of the waterway, the project has again been challenged in a broad-scale attack by a coalition of environmentalists and a railroad. Some plaintiffs in the present action were parties in the prior litigation, i. e., Environmental Defense Fund, Inc. (EDF), the Committee for Leaving the Environment of America Natural (CLEAN), and a plaintiff class of individuals aggrieved or detrimentally affected by TTW. Those parties are now joined as plaintiffs by Louisville & Nashville Railroad (L&N) and three plaintiff-intervenors, National Audubon Society, Birmingham Audubon Society and the Alabama Conservancy. The principal defendants, as before, are the Secretary of the Army, the Chief of Engineers, and the united States Corps of Engineers (Corps), and parties who have intervened as defendants are Tombigbee River Water Management District, Tennessee-Tombigbee Waterway Development Authority, State of Alabama and Tombigbee Valley Development Authority. By this present complaint, plaintiffs assert fifteen causes of action which may be reduced to three primary areas of judicial concern: 1. Plaintiffs contend in Counts I and II that the Corps lacks legal authority to construct the TTW, as it is doing, with a 300' wide navigational channel and other structures requiring major changes in design. 2. In Counts III and V, plaintiffs challenge the Corps’ method of calculating costs and benefits as legal justification for continuance of the project by including therein benefits to be derived from major changes in channel width, cut offs and new lock structures of the Warrior-Tombigbee Waterway, a separate project whose improvement has not received congressional authorization. This established navigation project extends from the Port of Birmingham on the Warrior River (known as Black Warrior River from its source to Tuscaloosa and from Tuscaloosa to Demopolis known as Warrior River) (BWT), where it joins the Tombigbee and continues south to the Port of Mobile. 3. The plaintiffs challenge again the Corps’ compliance with various environmental statutes, principally the National Environment Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq. By their answers, the defendants deny all violations of law and assert that the TTW is being constructed in accordance with law and the Corps’ regulations. In addition, defendants plead res judicata, collateral estoppel and laches in bar of the various causes of action now raised by plaintiffs. After extensive discovery, defendants moved for judgment on the pleadings or, in the alternative, for summary judgment on the principal issues raised by the complaint. Plaintiffs submitted a cross-motion for summary judgment directed, basically, to the authorization, economic and environmental questions. Each motion for summary judgment was accompanied by copious affidavits, depositions and other evidentiary materials which, in our judgment, render the case, which is admittedly of a complex nature, incapable of summary disposition. Therefore, the court calendared for full evidentiary hearing a basic claim raised for the first time in this litigation, not within the scope of the original complaint and hence not adjudicated in the prior action; namely, the legality of TTW as constructed by the Corps since 1971 because the Corps is allegedly exceeding the physical dimensions of the legally authorized project and making other design changes in excess of authority. Indeed, in the initial litigation plaintiffs stipulated that the authorized bottom width for the project was 300' except in the actual divide cut, where the authorized width was 280'. Neither did the plaintiffs challenge that the plan provided for lock chamber dimensions of 110 X 600' and that authorized depths were 9' in the river section and 12' in the canal and divide sections. It is upon these physical aspects of the waterway, together with the substitution of a chain of lakes concept for a perched canal in the canal section, that plaintiffs mount their main attack upon the sufficiency of congressional authorization for the waterway. Although plaintiffs in the former case raised no issue as to what were the legally authorized dimensions of the TTW, nevertheless, the question is of basic importance, transcending all others which plaintiffs now assert. If TTW, as it is being constructed, is not a legally authorized project, all other issues are mooted until such time as proper authorization may be obtained from Congress. The authority of the Corps, therefore, to construct the TTW in accordance with the present, ongoing plan is fundamental to a proper determination of the case. I. (a) Nature of the TTW Project. After previous adverse reports, the original survey of the TTW is found in House Document 269, 76th Cong., 1st Sess., where the Chief of Engineers, on February 27, 1939, reported to Congress for the Rivers and Harbors Board of Engineers, recommending that the United States undertake the construction of a waterway to connect the Tennessee and Tombigbee Rivers, by way of the East Fork of the Tombigbee River, Mackeys Creek, and Yellow Creek, so as to provide a channel of not less than 9 feet in depth and a minimum bottom width of 170 feet in river and canal sections and 115 feet in the divide cut, with locks approximately 75 by 450 feet clear inside dimensions, substantially in accordance with the general plan presented in the report. . House Document 269 is a detailed analysis of the then existing navigation projects affecting the TTW and of the present and prospective commerce derived from navigation on the TTW. It reported that the “improvement desired is a navigable waterway of dimensions which would permit modern barge-line operation between the Tennessee and Tombigbee Rivers.” H. Doc. 269, ¶ 20, p. 16. It was recommended that the plan be divided into three parts, namely: the river section 180 miles in length, the canal section 41 miles in length, and the summit or divide cut 30 miles in length, with the dimensions of the channel width, depth and locks to be as above stated. Id. ¶ 30, p. 18. These dimensions were recommended since the 75 by 450' lock could take care of an “economic standard tow [consisting] of five 35 by 145 foot barges and a towboat,” and the “channels would be adequate to provide for double lane navigation for the standard tow, assuming 8-foot draft.” Id. ¶ 32, 33, p. 19; see also ¶ 113, 114 and 115, p. 68. The foregoing recommendations were approved by Congress, with modifications, by House Document 486, 79th Cong., 2nd Sess., adopted January 2, 1945. In view of the growth of the bargeborne traffic during intervening years, that document led the Board of Engineers for Rivers and Harbors to conclude that maximum economy for the proposed waterway can be attained by the provision of channels and locks with somewhat larger dimensions than have hitherto been recommended for a project connecting the Tombigbee and Tennessee Rivers. The Board’s reexamination of prospective navigation requirements has occasioned fundamental revisions in the design of structures contemplated within the general plan of improvement. (H. Doc. 486, ¶ 2, p. 2). The movement of waterway traffic from Mobile to Paducah over the Tombigbee-Tennessee waterway is obviously one for which no actual carrier costs can be obtained. To establish an average cost based on operations under similar conditions on other waterways, it has been assumed as typical that the through traffic of this section will be carried in 8-barge tows handling 3,500 revenue tons, pushed by 1,000 horsepower towboats. (Id. ¶ 66, p. 25.) The locks . . . are 110 feet by 600 feet with 13 feet over the lower miter sills. These dimensions were chosen so that tows now moving on the connecting waterways, Warrior-Tombigbee, Tennessee, Ohio, Mississippi, Missouri, and Illinois Rivers, could utilize the connection without double tripping through the locks, thus the economics inherent in the movement of commodities in large-sized tows would be available to the commerce prospective for movement through the Tombigbee-Tennessee waterway. (Id. ¶ 106, p. 40). In general, the waterway would have a project depth of 9 feet with 1 foot over-depth and a bottom width of at least 170 feet. In the divide cut, ... a width of 150 feet with passing places 200 feet wide at least every 4 miles would be provided. The project depth in the divide cut . . would be 12 feet with 1 foot overdepth . . .. The passing places would each be 1,000 feet long and 200 feet wide . . .. These passing places would all be located so that they could be utilized as part of a broader channel if it were desired to widen the cut at some future date. (Id. ¶ 109, p. 41). The Board recognized that the estimates contained in H. Doc. 269 were “largely out of date” because of sweeping changes brought about since the country’s involvement in war, and that [transportation facilities of every kind have been taxed almost to capacity. . Consequently, it has been necessary to . canvass the latest and most reliable sources of information on the past, present, and probable future flow of traffic, in order to predict with confidence the type and size of facilities required and the function of the proposed project in the pattern that will be assumed by postwar commerce. (Id. ¶ 138, p. 52). The Board recommended that the United States undertake the construction of the TTW waterway along the route previously designated so as to provide a channel of not less than 9 feet in depth and a minimum bottom width of 170 feet in river and canal sections and 150 feet in the divide cut, with locks 110 by 600 feet clear inside dimensions. (Id. ¶ 147, p. 55). TTW was thus designed as a navigational project for two-way barge traffic to connect the north-flowing Tennessee River with the south-flowing Tombigbee River so as to provide a continuous waterway from the Tennessee, upper Mississippi and Ohio Valleys to the tidewater Port of Mobile on the Gulf of Mexico. The territorial limits of the TTW, however, extended northward from Demopolis, Alabama, on the existing canalized BWT, a separate navigation project, upstream via the Tombigbee River, East Fork of the Tombigbee, Mackeys Creek, with a deep cut through the divide into Yellow Creek, then to the Pickwick Pool in the Tennessee River near the common boundary of the states of Tennessee, Alabama and Mississippi. The original overall project length — Demopolis to Pickwick Pool, corrected by cutoffs — was 260 miles. H. Doc. 486 provided, among other things, that the plan of improvement investigated presupposes the construction of the new authorized lock and dam at mile 218.1 upstream from Mobile, near Demopolis, Ala., with normal upper pool at elevation 74.13 and a lock chamber 110 by 600 feet and with 13-foot depth over the lower miter sill. (Id. ¶ 102, p. 34). H. Doc. 486 discussed the plan of the project’s operation in the following terms: The function of the canal and its connections as a through route between the Gulf of Mexico and the Ohio, upper Mississippi, Missouri, and Illinois .Rivers involves the construction of a canalized channel and locks of standard dimensions, to permit the transit of tows of normal size without breaking formation. The plan assumes the replacement of existing locks 1 to 7 on the Warrior-Tombigbee waterway as planned in House Document 56, Seventy-third Congress, and House Document 276, Seventh-sixth Congress, as warranted improvements of the existing Warrior-Tombigbee waterway. (Id. ¶ 136, p. 51). (b) The Authorizing Legislation. The waterway was eongressionally authorized by Pub.L.No.79-525, 79th Cong., 2d Sess., enacted July 24, 1946, and reads as follows: That the following works of improvement of rivers, harbors, and other waterways are hereby adopted and authorized to be prosecuted under the direction of the Secretary of War 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: Tombigbee and Tennessee Rivers, Alabama and Mississippi; House Document Numbered 486, Seventy-ninth Congress. House Doc. 486 was thus incorporated by reference into the authorizing statute. The Chief of Engineers, in submitting the report, recommended approval of the project substantially in accordance with the general plan presented in this report with such modifications thereof as in the discretion of the Secretary of War may be advisable. House Doc. 486, Report of Chief of Engineers, p. 3. (c) Existing Navigation Projects Having Relationship to TTW (as of 1946). House Document 486 discussed the relationship of the TTW with connecting waterways in terms as follows: A connection via the proposed route would afford an additional means of interchange of commerce between the Gulf Intracoastal and the Warrior-Tombigbee waterways on the one hand, and the Tennessee, Ohio, and Mississippi River systems on the other. . . . The Gulf Intracoastal Waterway is a sea-level channel dredged through bays, sounds, coastal lakes, and canals. These channels have minimum project dimensions of 125 feet in width and 12 feet in depth. The authorized projects for the Warrior-Tombigbee waterway, the Tennessee, the Ohio, the Missouri, and the Mississippi Rivers provide for depths of at least 9 feet. The port of Mobile is connected with the Gulf of Mexico by a dredged channel 32 feet deep and about 30 miles long through Mobile River and Mobile Bay. (H. Doc. 486, ¶ 5, p. 5). Warrior-Tombigbee Waterway— The Warrior River is formed by the confluence of the Locust and Mulberry Forks about 20 miles west of Birmingham, Ala., and flows southwestwardly 178 miles, entering the Tombigbee River just above Demopolis. From its source to Tuscaloosa, Ala., a distance of 47 miles, the river is known as the Black Warrior River and from Tuscaloosa to Demopolis it is known as the Warrior River. Throughout this report the term “Warrior” will be understood to cover both sections of the river. Below Tuscaloosa the project on the Warrior-Tombigbee waterway provides for a year-round channel 9 feet deep and 200 feet wide to be secured by the construction of a series of locks and dams. (Id. ¶ 6). Tennessee River— The Tennessee River is formed by the confluence of the Holston and French Broad Rivers near Knoxville, Tenn., and flows southwestward to a point on the Alabama State line near the Georgia boundary. From there it crosses into Alabama and flows westward across the northern part of the State to the intersection of the Alabama, Mississippi, and Tennessee boundaries; thence it turns northward across Tennessee and Kentucky and empties into the Ohio River at Paducah, Ky. . . . The Tennessee Valley Authority has provided a comprehensive development for navigation, power, and flood control. A series of 10 locks and dams provides a year-round 9-foot navigation channel with a standard 2-foot overdraft to Knoxville. In the construction of locks 110 by 600 feet on the Tennessee River, provision was made for the future construction of auxiliary locks 60 by 360 feet, and in the construction of locks 60 by 360 feet, provision was made for the future construction of locks 110 by 600 feet. Report of Board of Engineers for Rivers and Harbors, p. 5-6, House Document 486. (d) Post-Legislative Occurrences (1950— 67). In 1951, as a result of a report by the investigative staff of the House Appropriations Committee, the TTW, the plans of which were then only partially completed, was placed in a “deferred-for-restudy” category. The essence of the investigative report was that the dimensions specified in the 1939 and 1946 House Documents, other than provision for 110 by 600' locks, were inadequate for 2-way navigation of 8-barge tows, and the Chief of Engineers should submit cost estimates for a 300' channel throughout pursuant to the Corps’ ultimate plan. (Plt.Ex. 85). General Pick, Chief of Engineers, took issue with the criticism for the Corps’ not submitting estimates of costs for developing a waterway with a 300' channel throughout, while providing for larger locks and a wider divide cut. On April 23, 1951, he advised the Appropriations Committee: The Corps of Engineers has not recommended a 300 foot waterway and would never so recommend unless there developed sufficient traffic to justify the cost of increasing channel dimensions. The Tennessee-Tombigbee Waterway is authorized for a width of 170 feet. To increase this width to 300 feet would require additional authorization by the Congress. This is in accordance with the normal procedure of Congress in authorizing improvement of waterways to meet existing needs; and of subsequently authorizing increases in scope when the growing demands of commerce make such action necessary. The authority delegated to the Chief of Engineers by Congress to make necessary modifications of authorized projects does not extend to major increases in project scope, such as that which would be involved in widening the Tennessee-Tombigbee Waterway. (Plt.Ex. 34, pp. 3-4). Project funds were revoked and planning studies discontinued. Matters remained in this status until the passage of the 1957 Public Works Appropriation Act, which mandated a restudy of the TTW with a view of determining the economic justification of the waterway. This task was primarily assigned to the Corps’ district engineer at Mobile. The restudy, labeled Design Memorandum No. 1 (GDM 1), was completed June 30, 1960; it was approved April 12, 1962, by the Chief of Engineers and submitted to Congress. Thq restudy recommended certain changes in the previous design, notably reducing the number of locks from 18 to 10, and reducing the project’s length from 260 to 253 miles. GDM 1 affirmed that the waterway was planned with channel dimensions to permit two way navigation by tows composed of six 35- by 195-foot barges, plus towboat, having over-all dimensions of about 70 by 735 feet. The above tow size was adopted as the maximum practicable for general use after a review of the proposed plan and discussion of the waterway’s characteristics with tow-boat operators experienced in navigating confined channels. (GDM 1, ¶ 49, p. 20). Lock dimensions authorized for the plan of improvement are 110 by 600 feet clear, with 13 feet over the lower miter sills. These dimensions are comparable with those completed or under construction on the Tennessee and Warrior-Tombigbee River projects. The 70- by 735-foot tow described above can be locked through a 110- by 600-foot chamber in a single operation by a “set-over” lockage, whereby the towboat is set alongside the barges while locking. This practice is not uncommon on the Ohio River and other waterways. (¶ 50). Authorized dimensions are 9 by 170 feet in the river section and 12 by 170 feet in the canal and divide sections except in the divide cut itself where dimensions are to be 12 by 150 feet. In the canal and divide sections, passing places 240 feet wide, 1,000 long with 500-foot-long transitions at each end would be placed 4 miles apart; upstream and downstream lock approaches would be widened also. The passing places are spaced so as to occur near the end of each hours run for the average tow. During design stages consideration will be given to eliminating the passing places except at lock approaches, and providing a 9 foot by 200 foot channel in the river section, together with 12 foot deep channels in the canal and divide sections which will have a width of 200 feet at a 9 foot depth under minimum pool conditions. Present indications are that such channels can be constructed within the economic limits of the project. (¶ 52, p. 21). The restudy emphasized there should be provision for future development, for in ¶ 64, it is stated: As a result of planning studies conducted prior to the time the project was classified as “deferred-for-restudy,” the governing criteria adopted for the project stipulated that all structures would be planned so as to permit future enlargement of the channel to a depth of 12 feet and minimum bottom width of 300 feet. Of the total estimated cost of the project, about $1,400,000 represents added cost resulting from provision for future enlargement. Should future conditions warrant, the waterway could be enlarged with a minimum disruption of waterway traffic, (p. 25). As a result of the 1960 restudy, the Corps recommended that the general plan of improvement as therein proposed, GDM 1, be approved, subject to such modifications as the Chief of Engineers may deem advisable, and that the authorized project be restored to an active status. This restudy was reported to Congress with a positive benefit/cost ratio of 1.08 to 1 calculated on the basis of a 2/s% interest rate. The 1965 Public Works Appropriation Act, which Congress enacted August 30, 1964, authorized reevaluation of the economics of the TTW. The district engineer at Mobile completed reevaluation of the project’s economics on June 30, 1966, in a document designated as Supplement to GDM 1. The scope of the report included a reexamination of the project plan to determine its capability for handling modern barge traffic, particularly with respect to channel widths, and to determine the project width which would yield maximum excess of benefits over costs. Cost estimates were made for both 200' and 300' (width in actual divide cut would be 20' less in both cases considered). No estimate, however, for the 170' project was prepared “since that width would unduly restrict tow size and would not be comparable to the connecting channels in the Tennessee and Black Warrior-Tombigee waterway” (¶ 9, Supp. to GDM 1). Although the 170' channel width provided in GDM 1 was “designed to permit 2-way navigation by a tow composed of six 35- by 195-foot barges (2 abreast, 3 in tandem) plus towboat, the tow having an overall length of 735 feet and width of 70 feet,” (¶ 13, p. 4) reevaluation conferences between representatives of the Office, Chief of Engineers, Board of Engineers for Rivers and Harbors, Division Engineers, South Atlantic Division and Mobile District Office, resulted in adoption of minimum channel widths for 2-way navigation as follows: Barges per tow Width Bottom Width (35' X 195') of tow of Channel 3 70' 170' 6 70' 200' The above widths were considered to give satisfactory clearance between maximum size tows as provided above for 2-way traffic. Although the section ratios in the canal section and divide cut would be somewhat smaller than 4.5 to 1 for maximum size tows loaded to capacity, under actual operating conditions and considering the many and variable sizes of tows and operating drafts under varying loads, channel dimensions adopted for each tow size investigated should be adequate for the prospective traffic. (Supp. to GDM 1, ¶ 14, p. 4). Preliminary analysis of barge rate factors and comparison of rates, Tennessee-Tombigbee versus the Mississippi River alternative route, indicated that traffic limited to a 3-barge tow via the TennesseeTombigbee could not compete with the Mississippi River waterway carrier rate where much larger tows are employed. Accordingly, construction cost estimates were developed for project widths of 200 feet and for 300 feet (20 feet less in the divide cut). Benefits have also been developed for these widths, based on utilization of larger tows. (Id. ¶ 15, p. 4-5). Navigation benefits were computed on the basis of using 6-barge tows on the 200-foot project and 8-barge tows on the 300-foot project. The 300-foot project would enable waterway carriers to operate 8-barge tows in two-way traffic, and the locks would accommodate an entire 8-barge tow, with towboat, without requiring any alteration of the usual tow formation. (Id. ¶ 21, p. 7). This study concluded that the 300' channel would project a positive cost/benefit ratio of 1.24 as against a ratio of 1.10 for a 200' project. The district engineer concluded his report by stating that the most practicable plan of improvement consists of a channel with bottom width of 300 feet (280 feet in the divide cut) and that the project is economically justified when all tangible, intangible, and secondary benefits are taken into consideration. Accordingly, he recommends approval of the plans and estimates presented herein. (Id. ¶ 37, p. 13). The report contained no recommendations that Congress enact legislation to approve the enlarged dimensions proposed in the 1966 economic reanalysis. In the interval since 1960, 8-barge tows had become common navigation configurations on the Tennessee River, as well as on the Ohio and Mississippi, all of which had minimum authorized channels of 300' width and 9' depth. The BWT, south of Demopolis, however, still remained with no more than a 200' authorized channel width, and limited lock capacity. Both of these factors precluded efficient navigation of 8-barge tows on that waterway. In recognition of this, the reevaluation report included in the cost of the TTW project “adding duplicate locks at the Jackson and Demopolis projects when the combined traffic on the Black Warrior-Tombigbee and Tennessee-Tombigbee exceed the capacities of the single locks at those locations.” (Id. ¶ 19, p. 6) On October 6, 1966, General William F. Cassidy, Chief of Engineers, sent a memorandum to the Special Assistant to the Secretary of the Army for Civil Functions enclosing copy of the 1966 economic reevaluation report. The Chief of Engineers tentatively approved widening the waterway to a 300' channel as the basis for further planning. The Chief of Engineers, making reference to the discretionary authority vested in the Secretary of War (Army), stated that the Secretary’s approval “will be necessary prior to proceeding with detailed design of a 300 foot waterway.” He concluded as follows: [I]n addition to requesting your clearance to issue my tentative findings on the economic reevaluation of the TennesseeTombigbee Waterway project, I also request the tentative approval of the Secretary of the Army to enlarge the waterway to 300 feet, with final approval of the enlargement to be contingent on a favorable finding by the Chief of Engineers after consideration of the views and comments of proponents and opponents of the waterway. (Deft.Ex. 33). On October 26, 1966, Alfred B. Fitt, Special Assistant to the Secretary of the Army for Civil Functions, issued a memorandum that the Secretary of the Army tentatively had given his approval to the 300' width recommended by the reporting officers and requested the Chief of Engineers to issue tentative findings on the economic reevaluation of the project. (Deft.Ex. 34). On November 3, 1966, the Chief of Engineers issued a public announcement that an economic reevaluation of the waterway project had been made in response to a directive of the House Appropriations Committee in its report on the Public Works Appropriations Act, 1965. The notice advised that the Corps had considered minimum widths of 200' and 300' and concluded that the project was economically justified with either width but was better justified with the 300' width. Interested parties were invited to present their views and comments concerning the report to the Chief of Engineers within 30 days from the date of this announcement to receive consideration prior to the submission of the Chief of Engineers’ final views to the Appropriations Committees of the Congress. (Deft.Ex. 36). This economic reevaluation report was submitted to Secretary of War Stanley Resor by General Cassidy on March 20, 1967, who stated: The District Engineer, Mobile District, and the Division Engineer, South Atlantic Division, find that the project is economically justified. The plan for the authorized project provides for a 253-mile canalized waterway joining the Tennessee and Tombigbee Rivers to serve barge navigation. The project would provide a maximum depth of 9 feet. Five locks and dams and five separate locks are planned to provide a slack-water route over the 341-foot drop in elevation from the Pickwick Pool on the Tennessee River to the Demopolis Pool on the Tombigbee River. Minimum width of 200 feet and 300 feet were given detailed consideration. The 170-foot width contemplated at the time of project authorization was given only minimum consideration as being inadequate for the volume of commerce and the size of barge tows expected to use the waterway. The reporting officers concluded that the project is economically justified with either the 200- or 300-foot width but is better justified with the 300-foot width. The estimated first cost of the project with a 300-foot width is $316 million, of which $239 million would be Federal. The ratio of average annual benefits to average annual cost, over a 50-year economic life, was estimated at 1.24 to 1 by the reporting officers. After a careful review of the report submitted by the Division and District Engineers, I issued a public announcement on 3 November 1966 tentatively concurring in the findings of the reporting officers and inviting the written views and comments of interested parties concerning the report and its findings. The data submitted in response to the public announcement have been reviewed and evaluated, and I hereby confirm the earlier finding that the 300-foot wide waterway is economically justified with an estimated benefit-to-cost ratio of 1.24 to 1. I further recommend that you exercise your discretionary authority under the 1946 River and Harbor Act to approve an increase in the project width from 170 feet to 300 feet so that further planning may proceed on the basis of a 300-foot. wide waterway. (Plt.Ex. 6). (e) Exercise of Discretionary Authority. Ten days later, March 30, 1967, Secretary Resor executed the following document: Under the discretionary authority of the River and Harbor Act of 1946 (Public Law 525, 79th Congress), I approve an increase in the width of the TennesseeTombigbee Waterway from 170 feet to 300 feet so that further planning may proceed on the basis of a 300-foot wide waterway. (Plt.Ex. 7). Simultaneously therewith, the Secretary of the Army furnished a copy of the report to the Chairmen of the House and Senate Public Works Committees and Appropriations Committees. A copy of the Secretary’s memorandum of March 30 was also forwarded to the Chairmen of the aforesaid committees. The Bureau of the Budget was likewise advised (Plt.Ex. 4). In the Secretary’s letter of transmittal, he pointed out that although the economic reevaluation report recommended a 300' channel width with an estimated benefits-cost ratio of 1.24, the project was only marginally justified. The congressional committees, upon receipt of the report, took no action on the recommendations, and no authorizing legislation was requested of or adopted by the Congress. On April 4, 1967, the Chairmen of the Public Works Committees of the House and the Senate advised General Cassidy that $500,000 would be allocated from available funds to permit resumption and continuation of the preconstruction planning and design through fiscal 1968. (Deft.Ex. 47 and 48). (f) Project Developments After 1967. Continuing studies by the Corps revealed that restrictive bends in the BWT below the Demopolis lock prohibited the efficient uti- / lization of 8-barge tows as planned for the overall project and that elimination of such bends would require 31 miles of cutoffs. Nevertheless, an EIS for the 300' wide TTW was filed April 20, 1971, and received administrative and congressional as well as judicial approval. EDF v. Corps of Engineers, supra. Congress first appropriated construction funds for TTW in the fiscal year 1971 and continued to do so annually thereafter. In October 1975, the Corps conducted studies of project costs and benefits (Plt.Ex. 13) for the purpose of furnishing an up-to-date economic feasibility review of the waterway. In this document the division engineer acknowledged “as the benefit analysis progressed it became apparent that additional considerations beyond the presently conceived project would affect the viability of the waterway. These additional considerations govern physical improvements that would be required on the Tombigbee River below the juncture of that river and the Warrior River.” The 1975 study dealt with all aspects of increases in costs and revealed that A. T. Kearney, Chicago management consultant, had been selected in February 1975 to update the navigation benefits. Based upon Kearney’s report, annual commerce moving over the waterway is projected to increase from 28 million tons for the initial year of the project to 99 million tons by the fiftieth year of the project. The Corps’ reanalysis was concerned with project modifications which impacted on the Tombigbee River below Demopolis (BWT). These considerations consisted of three elements: (1) duplicate locks at Demopolis and Coffeeville; (2) channel improvements from Demopolis to Mobile; and (3) relocations between Demopolis and Mobile. The 1975 report concluded: As a result of the in-depth review of the presently conceived project, the various alternatives, and with particular attention directed to the drastic cost increases, the problem of proper authorization for the Tennessee-Tombigbee has now become the main concern. At this point it should be noted that in the Senate Appropriation Committee hearings of 1971 a description of the presently conceived project was presented by General Free, Division Engineer. Based on this we consider that disclosure has been made as to the changes incorporated into the present project. Recognizing that the increases in cost have created a difficult situation in respect to authorization and with cognizance of the testimony of the chief of engineers in Senate hearings on appropriations in 1975 concerning the GAO review of escalating cost we feel that attention must be directed to the question of authorization. (Plt.Ex. 13, p. 8). Corps personnel considered several alternative actions and tentatively decided to continue construction of the TTW project “for which we have firm authority” (300') and “seek authorization for the preferred expanded project” of a 300' wide channel dimension with duplicate locks and cutoffs from Demopolis to Mobile. In September 1975, Corps officials from the Mobile and Nashville Districts, the South Atlantic Division, ORD and OCE met in Atlanta and agreed to analyze several plans for benefits and costs. There ensued a restudy of project costs and benefits which was submitted to the office of Chief of Engineers February 12, 1976 (Plt.Ex. 38), recommending prosecution of the construction of the authorized project for the TTW (Plan A) and the preparation of a feasibility report to investigate the additional navigational works contemplated under Plan C. Plan A consists of the TTW project extending from Demopolis to Pickwick, with main channel dimensions in the river section of 300' width and 9' depth, in the canal section 300' width and 12' depth, and in the divide section 280' width and 12' depth with a series of navigation locks and dams. Plan C contemplated additional navigation work downriver from Demopolis on the BWT, e. g., provision for cutoffs, channel widening, bend easings, bridge modifications and provision for duplicate locks at the Demopolis and Coffee-ville Locks and Dams in order that authorization of those modifications may be presented to Congress (Id. ¶ 76, p. 40). This report included a statement that recent studies of the existing navigation channel downstream from Demopolis revealed “that 8-barge tows would be impracticable because of channel widths, curvature or configuration at 44 locations and the clearances at 3 bridges spanning that reach. Since these constraints to traffic would impose limitation on traffic volume, tow sizes and tow speeds [for a length of 217 miles], early in the project life this second reevaluation was identified for study.” (Id. ¶ 15, p. 7). This report was the result of General Morris, Chief of Engineers, having directed that the restudy effort be completed by November 17, 1975. The division engineer, Major General LeTellier, directed the Mobile district engineer to include in the restudy an analysis “of the currently authorized project (300' waterway without duplicate locks at Demopolis and Coffeeville and without channel improvements below Demopolis Pool) and the ultimate proposed project (300' waterway with features excluded above).” (Plt.Ex. 23). On November 25, 1977, the office of the Chief of Engineers, acting by Major General McGinnis, concurred with the recommendations of the division engineer, stating in view of the fact that the 300-foot project is authorized and under construction, the 200-foot alternative can be eliminated as an alternative in the Black Warrior-Tombigbee study. (Plt.Ex. 32). (g) Appropriations to the Waterway Project. On November 8, 1968, Robert E. Jordan, III, Special Assistant to the Secretary of the Army for Civil Functions, issued a memorandum to the Secretary of the Army recommending the waterway as a new construction start for fiscal 1970. However, the Appropriations Committee made its initial recommendation for new construction start in fiscal 1971 in the amount of $1,000,-000. The justification sheet for the initial appropriation (Deft.Ex. 38) was based upon a length of 253 miles, bottom widths of 300' in the river and canal sections and 280' in the divide section, depths of 9' in the river section and 12' in the canal and divide sections, and for 10 single lift locks. This justification sheet contained a paragraph headed “Major Design Changes Since Project Authorization:” The project plan for Gainesville Lock and Dam proposed in the authorizing document has been modified to effect a reduction of the number of navigational structures required and to secure better hydraulic and construction conditions. In the authorized plan the river section of the waterway provided for a series of 7 locks to accomplish the required lift from the Demopolis pool to the canal section at Amory. In studies for the plan presented in the general design memorandum covering the entire waterway it was found feasible to eliminate 3 intermediate river section locks and dams by increasing the lift at the remaining 4 locks and widening the navigation channel from 170 to 300 feet. (Deft.Ex. 38). The requested funds were included in an omnibus appropriation act for fiscal year ending June 30,1971, to the Corps of Engineers for Civil Works made by Congress. Pub.L.No.91-439, 84 Stat. 890. Each year thereafter justification data showing the length, depths and bottom widths of the waterway were submitted to the Appropriations Committees with requests for additional TTW construction funds for inclusion in omnibus appropriation grants. The Corps allocates funds to TTW out of annual congressional appropriations. The allocations made by the Corps to TTW through fiscal year 1979 total $582,668,000. For the fiscal year 1980, the Corps has requested the sum of $165,000,000 for the TTW. Omnibus appropriations to the Corps, for fiscal year 1971 and each year thereafter, typically are for gross sums appropriated “for the prosecution of river and harbor, flood control, shore protection and related projects authorized by law; and detailed studies and plans and specifications . . . (but such studies shall not constitute a commitment of the Government for construction): $851,256,000 [with sums varying in each year] to remain available until expended. Provided that no part of this appropriation shall be used for projects not authorized by law or which are authorized by law limiting the amount to be appropriated therefor.” In none of the appropriation statutes for fiscal years 1971 to 1979 is there mention of authorizing or recognizing TTW’s expanded channel dimensions or design changes although several of the Acts, including the 1971 legislation, expressly authorize changes or modifications to specific projects previously authorized or under construction. (h) Publicity Attendant Upon Project Modifications. Prior to the submission to Congress of the 1966 Supplement to GDM 1 and Secretary Resor’s memorandum purporting to exercise discretionary authority to widen the channel, the House of Representatives, while resolved into a Committee of the whole House, was advised by Congressman Whitten that “indications are that [TTW] will likely be between 250 and 300 feet wide,” 112 Cong.Rec. 23374 (1966) (Deft.Ex. 43, Attachment 5). On June 24, 1970, Congressman Whitten advised the full House of Representatives that the TTW “will provide a 9 foot slack water navigation channel with bottom widths of 280 feet in the divide cut and 300 feet in the remainder of the route.” 116 Cong.Rec. 21252 (1970) (Deft.Ex. 43, Attach. 17). Before requesting discretionary authority from Secretary Resor in 1967, the Chief of Engineers had caused public notice to be given of the modification to a 300 foot wide channel, public hearings were held, and project opponents given a chance to voice their objections. In fact, the American Association of Railroads, as early as May 18, 1967, expressed their position that Congress should reappraise the project authorization because of the recommended increase in width. Hearings on Public Works for Water and Power Resources Development and Atomic Energy Commission Appropriations for Fiscal Year 1969 before a Subcomm. of Senate Comm, on Appropriations, 90th Cong., 2d Sess. 2054, 3235 (1968) (Deft.Ex. 43, Attach. 8). The Corps made full public disclosure of its 1966 economic reanalysis for modifying the channel dimensions of the waterway, and withheld from the Congress or the public no material facts regarding the TTW project. However, prior to the 1974 Locks and Dam 26 decision, the Corps had assumed it possessed general statutory authority to effect modifications to eliminate existing constraints on the BWT at such time as might be necessary in order to handle the volume of the traffic moving on the completed TTW. As heretofore stated, the Corps, in March 1971, submitted a comprehensive EIS to public authorities as required by NEPA, which disclosed the 300' channel width in the river and canal sections, and 280' width in the divide cut, and depths of 9 and 12'. The opponents of the waterway were vocal in public opposition not only before the committees of Congress but elsewhere. During the budgetary hearings for fiscal year 1971 in the House and Senate Subcommittees on Public Works of the Committees on Appropriations, the Association of American Railroads, with representatives from L & N present, spoke in opposition to the funding of the waterway. The Senate Subcommittee also received a communication from CLEAN opposing construction of the waterway. Hearings on Public Works for Water, Pollution Control, and Power Development and Atomic Energy Commission Appropriation Bill, 1971, before a Subcomm. of the House Comm, on Appropriations, 91st Cong., 2d Sess. 391, 397 (1971) (Deft.Ex. 43, Attach. 10); Hearings on Public Works for Water, Pollution Control, and Power Development and Atomic Energy Commission Appropriations for Fiscal Year 1971 before a Subcomm. of the Senate Comm, on Appropriations, 91st Cong., 2d Sess. 467 (1971) (Deft.Ex. 43, Attach. 11). (i) Interpretations of the Congress and the Corps for Post-Authorization Changes. Both the Congress and the Corps have traditionally interpreted the discretionary authority to make post-authorization changes of waterway projects without seeking further congressional authority to be subject to certain restrictions. The general view of Congress toward the scope of this grant of executive authority was stated in a 1946 report to the House by the Flood Control Committee: [I]t has been the policy of the Flood Control Committee and the Congress to recognize that changing conditions often make plans obsolete, and to avoid undue rigidity they have given the Secretary of War and the Chief of Engineers the authority to modify plans as may be found necessary and desirable. The committee finds that this confidence and responsibility has been carefully exercised, and that modifications approved by the Chief of Engineers and the Secretary of War are only those which are clearly within the established policies of the Congress. H.R.Rep.No.2165, Authorizations for Reservoirs, Levees, and Flood Walls for Flood Control, Flood Control Act of 1946, 79th Cong.2d Sess., May 29, 1946. The Corps construed the discretionary grant to permit project changes where (a) the scope of the project, i. e., the area to be served, is not materially changed; (b) the purpose or function of the project is not materially altered; or (c) the plan of improvement is not materially changed. In case of material change in any of these respects, the established view of the Chief of Engineers and his subordinates is that congressional approval should be sought, absent authorizing legislation that would otherwise increase the usual extent of their discretion. After the House Appropriations Committee Staff Report and the Corps’ response in 1951, see p. 892, supra, General Pick testified before a subcommittee of the Appropriations Committee and responded to questions by the committee counsel regarding the Corps’ position on its authority with respect to TTW specifically. General Pick replied as follows: The first point that I would like to cover here is that if the waterway is to be increased to 300 feet, it would require a resurvey and another report to be submitted to the Congress for the authorization. In the building of the Intracoastal Canal, with which I had a lot to do in Louisiana, from New Orleans to the Sabine River, we built that canal 9 feet deep with a 100-foot bottom width. It had not been completed but a very short time before it was enlarged to 125-foot . bottom width and 12 feet deep. There has been no thought given to building this waterway to 300 feet. There has been no request from the Congress to survey the waterway and produce a report for the Congress on a 300-foot waterway, nor will the Corps of Engineers take any such steps without a directive from the Congress. If that waterway is to be enlarged, I would hold immediately that we would require additional legislation. Hearings before the Subcomm. on Deficiencies and Army Civil Functions of the Comm, on Appropriations, Part 2, 137-38 (1951) (Plt.Ex. 33). As a result of the Appropriations Committee Staff Report, there ensued an inquiry by the Public Works Committee of the House into the scope of discretionary authority which should properly be accorded the Corps in making construction changes. A special subcommittee was appointed to study the policies, practices, and procedures in connection with the authorization and construction of river-and-harbor and flood-control projects and report back to the committee with the utmost dispatch its findings and recommendations thereon. Report on the Civil Functions Program of the Corps of Engineers, United States Army to the House Comm, on Publ. Works from the Subcomm. to Study Civil Works, 82d Cong., 2d Sess. 1 (1952) (Plt.Ex. 35). In its report the subcommittee stated: Your subcommittee is firmly of the opinion that the administrative officer responsible for water resource project construction must have some latitude in execution because authorizations are not made on the basis of final working plans, and, of course, all contingencies cannot be foreseen. However, there is a question as to the magnitude of a modification which an administrative officer should be authorized to make without specific congressional authority to make a change. The Chief of Engineers in his testimony agreed that it was desirable for the administrative agency to return to Congress for additional specific authority when major changes were contemplated. As already pointed out the Corps of Engineers says the authorized plan may not be modified without additional authorization by Congress. It would appear that the intent of Congress is that the Chief of Engineers may make minor modifications but clearly may not make major changes in a project without congressional action based upon a formal report. Id. at 22. The 1951 Chief of Engineers’ report made a comprehensive review of the scope of executive authority to modify projects previously approved by Congress, setting forth general principles as follows: The Corps of Engineers recognizes that this latitude for changes and modifications of authorized projects represents an important delegation of authority, and the Corps has attempted to exercise that authority carefully. In general, the Corps of Engineers considers that there are two types of modifications: a. Modifications and changes of a project which are necessary for engineering or construction reasons to produce the degree and extent of flood protection or the extent of navigation improvement intended by Congress are within the latitude delegated to the Corps of Engineers. Examples of such changes are shift of a dam to a nearby better location; provision of a greater storage capacity required by more complete flood records; shifts in alinement of channels indicated by more detailed surveys; or changes from a concrete to an earth structure because of lack of proper concrete aggregate. These may be considered generally as engineering modifications. b. Moderate extensions of project scope such as those required to provide flood protection to adjacent urban areas which have developed since the project was authorized, or to provide better channel alinement or larger navigation locks to meet the needs of developing commerce. It would obviously be uneconomical and contrary to the intent of Congress to construct obsolete projects, or to omit flood protection for a part of a city when it was the intent of Congress to authorize flood protection for that city. These may be considered generally as project modifications necessary to meet changed physical and economic conditions. On the other hand, the Corps of Engineers has considered that it does not have latitude to make modifications which materially extend the scope and change the functions of the project authorized by Congress. It considers that it is necessary to bring a proposed modification of an authorized project to the attention of Congress if further study after authorization shows that: a. The scope or functions of the project will be materially changed thereby- b. The plan of improvement will be materially changed from that originally authorized by Congress. c. There are special circumstances which were not known to the Corps of Engineers or .recognized by Congress when the project was authorized. No hard-and-fast rule can be cited as governing when a project modification should be presented to Congress for further consideration. Increased cost over the estimate presented to Congress as a basis for authorization is not necessarily a governing criterion, as the major factors giving rise to increased costs are separate and apart from the intent of Congress in authorizing an improvement, and as the Appropriations Committee of Congress are advised of cost changes year by year. (Our emphasis). These general principles appear to have furnished continuing guidance to the Corps since their publication in 1951. As recently as 1972, the General Counsel for the Corps, when asked his opinion on authority to make a proposed modification of an unrelated project, quoted from a 1969 legal memorandum to the Special Assistant to the Secretary of the Army containing substantially the same language as that in the 1951 Chief’s Report (Plt.Ex. 39), and concluded: The above statement is considered to be an accurate general definition of the discretionary authority of the Chief of Engineers. It is a definition which has been accepted by the Congress and followed by the Corps. It is, however, a very general statement, and some clarification is helpful. It is the view of this office that the discretionary authority given the Chief of Engineers to make post-authorization changes in projects extends only to what might be termed engineering changes: that is, changes which involve the location, dimension, method of construction, minor variations in the allocation of storage for the various project purposes, and changes in the size and scope of the project to meet needs which differ from those which existed at the time of authorization, so long as the scope and function of the project are not materially altered. The above changes may be made for engineering reasons (i. e., differing foundation conditions) or for economic reasons (i. e., expansion of the town to be protected or larger vessels being used in waterborne commerce). The discretionary authority is not considered to include matters which materially alter the nature of the project, such as the deletion or addition of project purposes where not otherwise authorized by law, or substantial changes in the relative sizes of project purposes. Likewise, the discretionary authority does not contemplate changes in the elements of a project which embody legal relationships, such as requirements of local cooperation which are, in effect, conditions imposed by the Congress to construction of the project. Given the above guidelines, each proposed post-authorization change must be examined individually, and whether the change is or is not a permissible one is finally, a matter of judgment. Two additional Corps documents have been presented to the court on the assertion that they establish binding guidelines upon the Corps with regard to questions of authority for project modifications. The first is a valid regulation promulgated in 1968, ER 1165-2-305 (Def.Ex. 5), which deals not with the necessity of further congressional authority but with information on significant post-authorization project changes required to be submitted to the Bureau of the Budget for budgetary purposes. This regulation therefore sheds little light on the question before the court. The other document is a draft regulation, ER 1105-2-31, recently prepared by the Planning Division of the Corps to eventually supersede ER 1165-2-305 (Plt.Ex. 41). This draft directly addresses the question of the Corps’ authority to make post-authorization changes and is the Corps’ first attempt to establish quantifying guidelines on when further congressional authorization is required. (Plt.Ex. 41, App. B). The draft has not yet been adopted by the Corps, however, and indeed has yet to be reviewed by Corps Counsel, the Director of Civil Works or the Chief of Engineers. At the trial, the views of three Corps officials were presented on the extent of the Chief’s traditional discretionary authority to make project modifications. Lt. Gen. John W. Morris, Chief of Engineers, testified that in his opinion the TTW, as currently being constructed, is the project contemplated by Congress in 1946. It was his opinion that Congress “would [not] expect us to take the taxpayers’ money in 1979 and build a Model-T.” (Trial Trans. 865). Unless major changes had been effected in the function or purpose of the project, Congress “expected the Corps ... to execute its programs at the time they are being executed to modern requirements,” (Trial Trans. 866) not the requirements which existed at the time of authorization. General Morris did not believe that additional congressional authorization was required for the challenged project modifications of TTW. He found his position consistent with the 1951 Corps’ statements, see pp. 892 and 900-902, supra, interpreting that language to mean that once the TTW construction was completed, further congressional authorization would be required to modify the completed project. In his words, “once a project is complete, the construction monies have been expended, and so you need new authorization.” Until that time,, according to Morris, the Secretary of the Army retains the discretionary authority to increase project width to support the projected commerce. (Trial Trans. 869-872). General Ernest Graves, Deputy Chief of Engineers, was of the view that if dimensions contained in the authorizing document were “found to be inconsistent with a sound design, that would be clearly the very sort of change which the words ‘discretion of the Chief of Engineers’ were intended to cover— [where] the design progresses after project authorization [and] it becomes clear that some aspect is not consistent with the rest of the design ... an overall adjustment has to be made. And it is in that process frequently that dimensions get to be changed.” (Graves’ Dep., Trial Trans. 1581-82). Graves pointed out that the congressionally authorized lock size of 110 X 600 feet could accommodate navigation for three barges wide (105' width) and for two-way navigation of tows that size there might be channel sections too narrow for passage (Id. 1582). Graves was of the opinion that if a “change in dimension does not have the implication of changing the scope of the project but merely is a matter of the necessary engineering design to carry out the intended purpose,” congressional authorization need not be procured (Id. Trial Trans. 1933). However, Graves believed if the dimension change was not essential to conform to engineering consistency in design, congressional authorization to widen or deepen the channel should be sought (Id. Trial Trans. 1933-34). The Chief of the Planning Division, Alex Shwaiko, itemized those changes to a project which have traditionally been recognized as within the Chief’s authority. Initial authorization of- a project, he said, means that Congress has directed that a service be performed; “their recognition of the problem exists, a solution exists, and they want that problem taken care of . we [then] progress into more detailed studies, that can determine . . . how best to provide the most useful and the most efficient project that can deliver that service.” (Trial Trans. 1174). According to Shwaiko, changes relating to engineering, construction, economic efficiencies and physical conditions in the area warrant modifications by the Chief as may further geologic or hydrologic studies. While Shwaiko acknowledged that the authorizing legislation of a project determines the scope and function of the project, he expressed no opinion as to the extent of authority granted the Chief of Engineers and the Secretary of the Army by House Doc. 486. (j) Other Design Changes Since 1946. Apart from the change in width from 170 to 300' in the river and canal sections and 150 to 280' in the divide section, plaintiffs challenge certain other design changes on the TTW as being beyond the authority of the Corps. House Doc. 486 provided that the river section was “with the exception of the cutoffs [to] follow generally the existing channel of the Tombigbee River. Only one major cutoff would be involved.” (Id. ¶ 104, p. 39). The project depth for the river section was 9' with 1' overdraft with the exception of Rattlesnake Bend cutoff, the longest of 21 cutoffs in the river section, where a depth of 12' with 1' overdraft was specifically provided (¶ 109-110