Full opinion text
MEMORANDUM OPINION READY, Chief Judge. This is another chapter in the saga of the ongoing controversy relating to the Tennessee-Tombigbee Waterway (TTW), a navigation project in Alabama and Mississippi which Congress authorized in 1946 and commenced funding in 1971. On July 14, 1971, Environmental Defense Fund, Inc. (EDF), Committee for Leaving the Environment of America Natural (CLEAN) and James D. Williams brought a class action on behalf of all persons aggrieved or detrimentally affected by the project against the Secretary of the Army, Chief of Engineers and United States Corps of Engineers to enjoin construction of TTW. The district court on April 13, 1972, dismissed five of the six causes of action alleged in the complaint and ordered an evidentiary hearing on the cause of action based upon noncompliance with the National Environmental Policy Act of 1969 (NEPA). On August 4,1972, the complaint was dismissed with prejudice. The district court, while declining to make a substantive review under NEPA, found that defendants had fully complied with NEPA’s procedural requirements, EDF v. Corps of Engineers, 348 F.Supp. 916 (N.D.Miss.1972). On appeal, the Fifth Circuit affirmed, holding not only that NEPA’s procedural requirements had been fully satisfied but also that substantive review by the courts was foreclosed since Congress, which had authorized TTW before NEPA became law and approved and funded its construction after it enacted NEPA, was the ultimate decisionmaker. EDF v. Corps of Engineers, 492 F.2d 1123 (5 Cir. 1974). Certiorari was not applied for. On November 30,1976, the present action was filed to enjoin the continued construction of the waterway. As before, plaintiffs are EDF, CLEAN and a plaintiff class of individuals aggrieved or detrimentally affected by TTW. Additional plaintiffs are Louisville & Nashville Railroad (L&N), Randall Grace, National Audubon Society, Birmingham Audubon Society and Alabama Conservancy. After extensive discovery, plaintiffs on January 30, 1978, filed an amended complaint which consisted of 15 counts. In a lengthy evidentiary hearing on the first two counts, the district court held that plaintiffs’ primary claim that defendants lacked statutory authorization to construct a channel 300' wide was barred by laches, and that other challenges to modifications of original project design were without merit. EDF v. Alexander, 467 F.Supp. 885 (N.D.Miss.1979), aff’d, 614 F.2d 474 (5 Cir. 1980), pet. for cert. filed, 49 USLW 3031 (Aug. 5, 1980). Following status conference on May 30, 1980, the court dismissed Count XI upon motion of plaintiffs and scheduled the remaining 12 counts to be considered for disposition on cross-motions for summary judgment and defendants’ alternative motion for judgment on the pleadings. The parties have submitted a plethora of exhibits and affidavits as well as voluminous briefs in support of their respective motions. After due consideration, the court finds that plaintiffs are not entitled to prevail and their amended complaint is dismissed with prejudice, except in one particular as to Count XIV. Instead of treating the counts seriatim, the court has organized discussion of the remaining claims as follows: (1) NEPA issues, (2) benefit/cost computation, (3) local assurances, (4) fish and wildlife, (5) discharge of dredged material, and (6) failure to publish agency regulations. I. NEPA ISSUES In Counts VII, VIII, IX and X, plaintiffs challenge a variety of environmental and economic aspects of the project which they claim violate NEPA, 42 U.S.C. § 4321 et seq. These contentions may be summarized as follows: (1) illegal segmentation of TTW into two parts, one a waterway between Pickwick Pool in Tennessee and Demopolis, Alabama, and the other a waterway between Demopolis and Mobile, and failure to prepare, circulate and file an Environmental Impact Statement (EIS) discussing the effects on both segments before continuing con- ■ struction; (2) failure to analyze and disclose project alternatives in the 1976 Economic Reanalysis Summary; (3) failure to prepare a supplemental or revised EIS after making major changes in project design and subsequently identifying adverse environmental and economic impacts. Defendants contend that plaintiffs, in attempting to raise charges of NEPA noncompliance, have failed to state claims upon which relief can be granted or that, since there is no genuine issue of material fact, defendants are entitled to summary judgment on all NEPA issues. Of the many environmental challenges made by plaintiffs, the primary complaint is that the 1976 Economic Reanalysis Summary revealed for the first time that “TTW’s fundamental purpose was to move goods from waters north of Pickwick, Tennessee, through Demopolis, Alabama, and down the river below Demopolis to Mobile,” and it was then first disclosed that TTW would require work downstream from Demopolis to achieve maximum navigation benefits. According to plaintiffs, when Corps officials in 1975 discovered that 8-barge tows could not navigate south of Demopolis, they decided to divide the TTW project by treating the 300' waterway between Pickwick and Demopolis separately from the 200' waterway between Demopolis and Mobile, and to continue construction on the northern part while studying need for work on the southern part. It is urged that this procedure contravenes NEPA since an EIS on the entire project-Pickwick to Mobile-must be prepared, published and filed before work may continue north of Demopolis. No EIS on the TTW, so plaintiffs contend, has ever discussed and analyzed the impacts of the project upon the river south of Demopolis or upon the Port of Mobile. In advancing this contention plaintiffs ignore the history of TTW, Black WarriorTombigbee River (BWT) and the Port of Mobile as separate congressionally-authorized navigation projects as well as the adjudication that defendants have fully complied with NEPA. This court has previously recounted TTW’s history. The salient features are that TTW’s original 1939 survey, as contained in House Document 269, reported that the “improvement desired is a navigable waterway of dimensions which would permit modern barge-line operation between the Tennessee and Tombigbee Rivers.” House Document 486, which was incorporated in the authorizing statute, Pub.L.No. 79-525, 79th Cong., 2d Sess., enacted July 24, 1946, discussed 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.” As we have previously found, TTW was designed from its inception 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. 467 F.Supp. at 890. House Document 486 specifically discussed the relationship of the TTW with the connecting Tennessee River and the 200' wide Warrior-Tombigbee Waterway, also known as Black Warrior-Tombigbee. Plans for TTW were deferred for a number of years until the project’s economics were completely reevaluated in June 1966. The original design of a 170' channel was then dropped “since that width would unduly restrict tow size and would not be comparable to the connecting channels in the Tennessee and Black Warrior-Tombigbee waterway,” and the 1966 study recommended a 300' wide channel to “enable waterway carriers to operate 8-barge tows in two-way traffic,” rather than a 200' channel for 6-barge tows. 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.” 467 F.Supp. at 894. The 1966 evaluation report submitted by General Cassidy, then Chief of Engineers, to the Secretary of War, specifically recommended a 300', and not a 200', channel width for TTW. This court has previously found: Although it is apparent that both the 1966 reevaluation report and General Cassidy assumed a positive BCR was based upon navigation benefits of 8-barge tows operating between the Tennessee River and Mobile, this assumption did take into account reduced tow speeds, and hence lesser navigation bénefits because of existing constraints of the BWT south of Demopolis to 8-barge tows. 467 F.Supp. at 895 n.4. The 1966 supplement did not anticipate the need for duplicate locks south of Demopolis until the year 2010 when TTW’s projected traffic would reach 28 million tons annually. Project capacity, 39 million tons annually, was anticipated by the year 2026. The 1976 report, upon the basis of present studies of prospective commerce on TTW and BWT, found that the duplicate locks would be required at an earlier date after the completion of TTW, then scheduled for 1986, and also the navigation constraints to 8-barge tows would exist in the BWT at various locations. The report recommended that work continue on TTW and a feasibility report be prepared to investigate more fully downstream navigation work and duplicate locks. BWT and Mobile Harbor are long-established waterways which Congress tradition- ^ ally has regarded as entirely separate from TTW, and plaintiffs’ fears that TTW’s construction will have “coercive” effects upon them are unfounded. The connecting BWT has been a navigation project for which Congress has appropriated funds since 1884. Channel dimensions of 9' X 200' as well as the Oliver Lock were authorized in 1935. First funded by the Rivers and Harbors Act of May 20, 1826, Mobile Harbor has been the subject of many appropriation acts, and present channels were authorized by the Rivers and Harbors Act of September 3, 1954. The increased depth of Theodore Ship Channel, to which plaintiffs allude, was first authorized in 1970, and is a project for which a final EIS was filed in 1977 with the Council on Environmental Quality (CEQ). It is clear that when the first action was filed attacking the sufficiency of the 1971 EIS and the Corps’ failure to comply with NEPA, constraints to 8-barge traffic were known to exist and, if TTW’s capacity was to be fully utilized, downstream work on the BWT would be needed. All arguments which plaintiffs now make as to the insufficiency of the original EIS and the need for it to analyze in detail the environmental impacts of TTW on the BWT and Mobile Harbor could have been raised in the original suit. The same can be said of the alleged failure to consider a 200' channel rather than a 300' channel, for these very alternatives were prominently discussed in the 1966 Supplement. As the pleadings, trial transcript and court opinions in the first case clearly reveal, the adequacy of. the 1971 EIS was vigorously challenged on numerous grounds, not only for alleged insufficient analysis and treatment of matters which were discussed, but also for many items of environmental and economic concern which the plaintiffs there contended had been completely omitted from the document. Moreover, the alternatives of rail transportation and no action, as well as the project’s economic justification, were specifically detailed in the EIS, and unsuccessfully challenged. The Court of Appeals made a final determination on the merits that the Corps officials had complied in all respects with the procedural and substantive requirements of NEPA, 42 U.S.C. § 4321 et seq. 492 F.2d at 1411. All of the present parties who were plaintiffs in the first action-EDF, CLEAN, and the plaintiff class, including Dr. Glenn Clemmer and Dr. F. Glenn Liming-are precluded by res judicata from re-litigating any questions of NEPA compliance which could have been raised in the first suit, and this bars them from now complaining that the EIS should have dealt with impacts on the BWT and Mobile Harbor, or more fully considered project alternatives or TTW’s economics. The purpose of the doctrine of res judicata is to promote finality of judgment and judicial economy by eliminating nee'dless re-litigation of claims for relief. Maher v. City of New Orleans, 516 F.2d 1051, 1055 (5 Cir. 1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976). A concise statement of the doctrine appears in Dore v. Kleppe, 522 F.2d 1369, 1374 (5 Cir. 1975), wherein the court stated that “a final judgment is conclusive on the parties as to all questions of fact and law relevant to the same cause of action which were or could have been litigated in the prior proceeding.” Tests for determining whether the substance of two actions is the same include: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? Aerojet-General Corp. v. Askew, 511 F.2d 710, 718 (5 Cir.) (quoting Astron Industrial Assocs. v. Chrysler Motors Corp., 405 F.2d 958, 961-62 (5 Cir. 1968)), appeal dism’d, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). A judgment in a class action also binds absent members of the class where their interests were adequately represented in the prior suit. Gonzales v. Cassidy, 474 F.2d 67, 75 (5 Cir. 1973). Unquestionably, the plaintiff class was capably represented in the prior case, and Drs. Clemmer and Liming are bound by the adverse judgment. The doctrine of “virtual representation” applies when a party’s interest in a suit is “so closely aligned with [a nonparty’s interest] as to be his virtual representative.” Pollard v. Cockrell, 578 F.2d 1002, 1008 (5 Cir. 1978) (quoting Aerojet-General Corp., supra, at 719). The purpose of this doctrine is to prevent the beneficial effects of res judicata from being emasculated by merely a formal change of parties. Thus, L&N, Randall Grace and three organizational plaintiffs, having the same interest as the plaintiffs in the prior suit to halt construction of TTW, are brought within the scope of res judicata under this doctrine. Even if res judicata is not effective as to L&N, Randall Grace and three organizational plaintiffs, they are nonetheless subject to the defense of collateral estoppel which prevents them from relitigating issues which were decided on their merits in the earlier case, even though a different cause of action is now presented. Maher, supra; International Ass’n of Machinists & Aerospace Workers v. Nix, 512 F.2d 125, 132 (5 Cir. 1975); Port Arthur Towing Co. v. Owens-Illinois, Inc., 492 F.2d 688, 692 n.6 (5 Cir. 1974). Collateral estoppel applies where (1) the issue to be decided is identical to that involved in the prior action; (2) this issue was actually litigated in the prior action; and (3) the prior determination made on this issue was necessary and essential to the resulting judgment. Moreover, the cause of action in successive litigation is the same where “the primary right and duty, and the delict or wrong are the same in each action.” Wasoff v. American Automobile Ins. Co., 451 F.2d 767, 769 (5 Cir. 1971); see Hall v. Tower Land & Investment Co., 512 F.2d 481, 483 (5 Cir. 1975). Indeed, defensive collateral estoppel has been accorded greater acceptance in the courts than when the doctrine has been sought to be used offensively by one who was not a plaintiff in the prior action. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979). The NEPA issues actually litigated and resolved in the first suit were of such breadth and scope as to be conclusive on all present contentions which plaintiffs make on the basis of the 1976 economic reanalysis. An alternative ground for our holding is that the 1976 study does not constitute a “recommendation or report on proposals for legislation and other major Federal action significantly affecting the quality of the human environment,” so as to require an EIS, under 42 U.S.C. § 4332(C), and to call for public consideration of “alternatives to the proposed action,” pursuant to 42 U.S.C. § 4332(C)(iii). The report recommended that the NEPA-approved TTW be continued and “a feasibility report be prepared to more fully investigate the additional navigation works ... in order that authorization of those works may be considered by the Congress.” The language of the report, as to future work, is tentative, preliminary, and of a general nature. Clearly, this is no proposal for legislation as to downstream navigation and lock improvements but only a recommendation to investigate the feasibility of such work. Nor is it a proposal for federal action- since the work has not yet been found to be feasible. Though feasible, such work admittedly may not be undertaken without congressional authorization. At most, the report sets forth plans contemplated by Corps officials for additional navigation work and duplicate locks when TTW is completed ten years from the date of the report-. The Supreme Court has squarely held that under § 102(2)(C), 42 U.S.C. § 4332(C), the moment at which an agency must have a final statement ready “is the time at which it makes a recommendation or report on a proposal for federal action” (emphasis in original text). Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2355, 45 L.Ed.2d 191 (1975); Kleppe v. Sierra Club, 427 U.S. 390, 406, 96 S.Ct. 2718, 2728, 49 L.Ed.2d 576, 588 (1976). In Kleppe, the Court explicitly held that no EIS need be prepared where a project is merely contemplated or studied. In that case, the Department of Interior had conducted studies which contemplated a regional program for coal resources development. The court of appeals erroneously believed that since a regional plan was contemplated, an EIS was necessary for the entire region, and not simply for one section of the region in which agency action was proposed. Reversing, the Supreme Court said: The procedural duty imposed upon agencies by this section is quite precise, and the role of the courts in enforcing that duty is similarly precise. A court has no authority to depart from the statutory language and, by a balancing of court-devised factors, determine a point during the germination process of a potential proposal at which an impact statement should be prepared. Such an assertion of judicial authority would leave the agencies uncertain as to their procedural duties under NEPA, would invite judicial involvement in the day-to-day decision-making process of the agencies, and would invite litigation. As the contemplation of a project and the accompanying study thereof do not necessarily result in a proposal for major federal action, it may be assumed that the balancing process devised by the Court of Appeals also would result in the preparation of a good many unnecessary impact statements. (Emphasis in original text). 427 U.S. 406, 96 S.Ct. at 2728. So here, that Corps officials contemplated that future work should be done does not trigger a NEPA requirement for an EIS encompassing the contemplated work. Despite plaintiffs’ contention that a “cumulative or synergistic impact” upon BWT and Port of Mobile will inevitably result from TTW, the Supreme Court, in Kleppe, said this sort of claim for a comprehensive EIS is valid only where several proposals for action are pending at the same time when “their environmental consequences must be considered together.” 427 U.S. at 410, 96 S.Ct. at 2730. Footnote 20 of the Kleppe opinion emphasizes that the statute (§ 102(2)(C)) speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. Should contemplated actions later reach the stage of actual proposals, impact statements on them will take into account the effect of their approval upon the existing environment; and the condition of that environment presumably will reflect earlier proposed actions and their effects. 427 U.S. at 410 n.20, 96 S.Ct. at 2730 n.20 (emphasis in original text). The Fifth Circuit applied Kleppe’s rationale in Atlanta Coalition v. Atlanta Regional Comm’n, 599 F.2d 1333 (5 Cir. 1979), to hold that an EIS was not required on Atlanta’s long-range transportation plan (RDP) before the implementation of a portion of that plan by widening Interstate 85 from four lanes to as many as sixteen. Relying on Kleppe, the court rejected the claim that “coercion” to approve the overall plan caused by the highway widening required an EIS encompassing the entire transportation plan, saying: Although the Kleppe Court accepted in part the thesis that proposed actions with “cumulative or synergistic” effects may require a comprehensive EIS, it added the qualification that an agency need not “consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions.” Id. at 410 n.20, 96 S.Ct. at 2730 n.20. . .. Since it is clear that many, if not most, of the individual transportation projects included in the [Regional Development Plan] are not “proposed” federal actions — some will not ever be implemented, others not for another ten or twenty years — but are, at best, “contemplated” actions, the impact statement prepared on proposed projects . . . need not address the environmental impact of the entire RDP. 599 F.2d at 1349. In Texas Committee on Natural Resources v. Bergland, 573 F.2d 201, 210 (5 Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 455, 58 L.Ed.2d 425 (1978), the Fifth Circuit, again applying Kleppe, reversed a district court decision which ordered an overall or programmatic EIS on all government-owned East Texas forest lands before allowing a clearcutting project to proceed. We hold that since neither the BWT improvements mentioned by the Corps in the 1976 report nor the Mobile Harbor improvement alluded to by plaintiffs have reached the proposal stage, there is no requirement that an EIS be prepared to discuss the environmental impacts of such improvements. Finally, we look at the claim that a supplemental EIS must be prepared because of the subsequent identification of adverse impacts or design changes after the original EIS was judicially approved in 1972. NEPA itself contains no such requirement, but plaintiffs stress that Corps regulations adopted in 1974 do and that they have not been adhered to. The record shows that Corps officials updated the original EIS by compiling and submitting to CEQ 18 volumes entitled First and Second Supplemental Environmental Reports to be appended to the EIS. Summaries of these reports have been received in evidence. (D. Ex. 8, 9). Corps officials claim that this procedure has satisfied the applicable regulation, 33 CFR § 209.410g. This regulation has three parts. Plaintiffs insist that the first two parts apply, while defendants claim that the third part is controlling. Paragraphs g(l) and (2) provide that a revised EIS shall be prepared whenever (a) there has been a major change in the plan or method of operation of the proposed action, or (b) the EIS on file becomes deficient because certain environmental impacts were not discussed in the EIS or design changes or project purposes were significantly modified after the original statement was filed. Paragraph g(3), upon which defendants rely, provides that whenever it is necessary only to clarify or amplify a point of concern raised after the filing of the final EIS with CEQ or, if comments on the final statement are received from federal, state or local agencies or the public, a clarification, amplification or response shall be prepared and filed with CEQ. Defendants’ position is that since no major change has occurred in the project design or purpose, and since the original EIS has not become deficient because of failure to discuss environmental features or because of later significant modifications, it was proper for Corps officials to update the EIS by supplemental reports in the manner provided by ¶ g(3). Additionally, defendants assert that the Corps went beyond the requirements of ¶ g(3) by circulating the supplemental reports to numerous public agencies as well as to University libraries in the project area, and posting public notices as to the availability of the reports. Included in these public materials are such reports as “An Ecological Study of the TennesseeTombigbee Waterway” conducted by Mississippi State University, “A Report on the Fishes on the Upper Tombigbee River, Yellow and Indian Creek Systems of Alabama and Mississippi” performed by the University of Alabama under the direction of Dr. Herbert Boschung, a bird study directed by Dr. David Rogers of the University of Alabama, various archeological surveys, a study of the macrobenthos in the river section conducted by Teledyne Brown Engineering, studies of the hydrologic environment conducted by the U. S. Geological Survey, an erosion control study for the divide cut conducted by Mississippi State University, and a report on Mackeys Creek release temperatures. Plaintiffs claim that significant project changes occurring since the 1971 EIS include (a) increase of project land acquisition from. 70,000 acres to 105,000 acres; (b) changing from a “perched canal” to the “chain-of-lakes” concept in the canal section; (c) shortening the river section by 20 miles; and (d) taking additional spoil material excavated in the divide cut section. These claims, both singly and collectively, are without merit. It is clear that major sections of more acreage in the river, canal and divide cut sections will be unaffected by construction, and will not result in destruction of habitat. In other instances, additional lands were acquired to mitigate environmental impact. (D. Ex. 47). Mere increase in the quantity of land for a project does not alone constitute a project change or basis for supplementing the EIS. Plainly, the chain-of-lakes design in the canal section was adopted because of its environmental and aesthetic advantages. Additionally, this court has specifically found that the chain-of-lakes design is not a significant change inasmuch as it does not necessitate acquisition of additional real estate and because the acreage to be inundated by the pools is lowland subject to periodic flooding under the original design. 467 F.Supp. at 910. This court also held that the chain-of-lakes concept “does not affect either the scope or purpose of the project, nor does it materially change the plan of improvement.” Id. As for shortening the river section, this court has heretofore found as a fact that the cutoffs were justified from an engineering standpoint since the amount of excavation otherwise required under the Corps new bend-widening criteria would have been much greater, and the additional cutoffs “did not affect the scope, purpose or plan of improvement in any material way.” Id. Res judicata bars relitigation of plaintiffs’ contentions as to the chain-of-lakes concept and shortening of the river. As for spoil disposal, the excavation of more spoil may hardly be considered as a “design change.” In any event, in the original suit, spoil was identified in the EIS as a significant impact for the proper disposition of which judicious planning will be required. The EIS further states that “the optimum methods for the disposal of all this material have not been determined;” and various proposals were under consideration for utilization of the excavated material in a most advantageous manner, to enhance the present environment. . . . The evidence convinces the court that environmental design arts are being employed in the project’s advanced engineering stages which will lessen the potential adverse effects of the spoil. Contrary to opinions expressed by some of plaintiffs’ witnesses, it will be wholly impracticable to require that the ultimate environmental design for the disposition of this material be included in the EIS. 348 F.Supp. at 938-39. The court finds as a fact that measures respecting spoil disposal as set forth in the supplemental reports to the EIS are essentially those which were visualized by government witnesses in the 1972 trial, and that these disposal measures have proved to be environmentally sound. Additionally, the present reliable estimate of the quantity of all material to be excavated is not more than 6V2% of the amount of spoil projected in the 1972 EIS, and this increased amount may hardly be considered a significant new environmental impact. In Inman Park Restoration, Inc. v. Urban Mass Transportation Administration, 414 F.Supp. 99, 118 (N.D.Ga.1976), aff’d sub nom. Save Our Sycamore v. Metropolitan Atlanta Rapid Transit Authority, 576 F.2d 573 (5 Cir. 1978) (per curiam), the court held that the preparation of a revised EIS is an unusual occurrence occasioned “only when there has been a significant change in the entire project on which the EIS was prepared or when significant new information has arisen which changes the environmental impact of the entire projectV (emphasis added). Hence, a supplemental EIS is not required merely because clarifying data has become available and there has been no design modification which significantly changes the entire project. Certainly a supplemental EIS on individual components of the TTW is not required under Corps regulations nor under Save Our Sycamore, supra, which held that the failure to focus upon and identify components having no independent function did not vitiate an EIS prepared for the entire project. In this case a supplemental EIS discussing impacts of components of TTW having no purpose independent of the waterway is, in our view, neither necessary nor practical. Plaintiffs also contend that a revised EIS is essential because significant new information has been gained since 1971 as to certain categories of impacts which the original EIS discussed only in general terms. This claim relates to such matters as waterlogging, sedimentation and water quality, disposal or dredged spoil, and fish and wildlife mitigation lands. But these very items were specifically identified as impacts in the original EIS, and can hardly be characterized as significant new impacts under § 209.410g(2). Surely, known impacts upon the environment do not become “new” impacts merely because additional information may have been acquired. To accept plaintiffs’ thesis and the supporting affidavits of their experts would strip the 1971 EIS of any validity, and reopen the same factual and legal issues which were resolved in the first suit. We decline to construe the quoted regulation to accomplish such a result. Moreover, the Corps’ final regulation for implementing NEPA, adopted August 25, 1980, and found in 45 Fed.Reg. 56760-56786 is merely declaratory of the previous regulation ER 1105-2-207. With respect to projects in a continuing construction category, the applicable portion of the final regulation, 45 Fed.Reg. 56785, provides that a new EIS is not required in the absence of significant environmental impacts from design changes or new circumstances occurring since the completion of the Phase II GDM. The court finds that the exceptional conditions are not here present. The court therefore concludes that the Corps officials correctly determined that a revised EIS for TTW did not become necessary or appropriate under its regulations and that they acted properly by filing supplemental reports to the EIS which adequately clarify and amplify all points of environmental concern. The argument that the Corps failed to comply with its own regulation must be rejected. Accordingly, Counts VII, VIII, IX and X are dismissed for failure to state a claim upon which relief can be granted. II. BENEFIT/COST COMPUTATIONS In Counts III and VI plaintiffs attack TTW’s economic justification by claiming that defendants have not adhered to statutory and regulatory requirements for computing benefits and costs. Plaintiffs allege various ways in which the project’s benefits have been greatly inflated and falsely overstated and costs grossly understated, maintaining that a correct comparison of true benefits and true costs would reveal a benefit/cost ratio (BCR) less than 1, a condition requiring the Corps to deter the project and they say that defendants have deliberately misrepresented the benefits and costs to the public and Congress. Count III specifically charges defendants have violated the Water Resources Planning Act of 1965, 42 U.S.C. § 1962 et seq., and the regulations promulgated by Water Resources Council entitled Principles and Standards for Planning Water and Land Related Resources, 38 Fed.Reg. 24778 (Sept. 10, 1973); and Count VI specifically charges a violation of Flood Control Act of 1944, 33 U.S.C. § 701-1. Plaintiffs also rely upon § 7(a) of the Department of Transportation Act of 1966, 49 U.S.C. § 1656(a), and Corps regulation ER 1120-2-114. The common theme of these statutes and regulations is that the benefits of a water resource project should exceed the costs. Defendants interpose several defenses to these issues of economic justification: first, that plaintiffs lost on such claims in the former litigation and are barred from relitigating them by invoking different statutes than those previously relied upon; second, that benefit/cost computations are agency decisions which, apart from NEPA, are not subject to judicial review; and third, that Congress has affirmed the benefit/cost computations submitted by Corps officials by making annual appropriations to TTW and courts may not review congressional decisions of this character. We find merit in these positions. Certain basic facts are undisputed. On March 30, 1967, Congress was advised that TTW, based on a 50-year project life, had an estimated BCR of 1.24 and, in the opinion of then Secretary of Army Resor, the proposed investment (then estimated at $316 million) was “only marginally justified.” 348 F.Supp. at 924 n.10. In July 1970, the project’s BCR was established at 1.6, based on estimated federal costs of $323,000,000 and annual benefits of $31,-772,000. The project’s benefits were chiefly navigation, but recreation, fish and wildlife and area redevelopment were also calculated as benefits. Matters stood in this posture when the first suit was filed in 1971. By February 1975, the Corps ascertained that the BCR had fallen to 1.4, and the project’s cost had risen to $815,000,000. Corps officials realized that inflation and other factors of increased costs threatened to drive the BCR below 1. In March 1975 the Corps advised Congress: Current estimates [of benefits] are based on field traffic survey data collected in 1964 and reflects [sic] base year conditions as of 1963. Due to the recent rapid escalation of transportation and construction costs and the lengthy period since the 1963 field survey, an economic reanalysis based on new field traffic surveys, current freight rate analyses and updated construction costs has been initiated. The results of this analysis will be available in January 1976. Thereafter, Corps officials engaged A. T. Kearney & Company, management consultants, to make an extensive' study of the transportation economics of TTW. The results of the Kearney investigation and other data were incorporated in the 1976 Economic Reanalysis Summary. As previously noted, this study dealt with three areas of evaluation: (a) the basic project plan, or the authorized TTW which extended from Demopolis Lake to Pickwick Reservoir; (b) navigation work on the BWT downriver from Demopolis; and (c) duplicate lock construction at Demopolis and Coffeeville. While noting that plans (b) and (c) were not authorized, the report stated that, despite the identified constraints, TTW was “economically justifiable, but in view of the current projections of traffic the plan [authorized TTW] would neither provide for the orderly development of Waterway capacity nor for the optimization of project benefits.” The report estimated that the authorized project still had a positive BCR, at 1.08, with annual benefits of $88,896,000 and annual charges of $82,339,-000. At October 1975 price levels, TTW’s total cost was calculated at $1,360,400,000. Twenty-eight million tons of commerce, principally coal and metallic ore shipments, were estimated for the initial year of completion, 1986, to derive transportation savings of $55.5 million. The report also brought out that the carrying capacity of the 300' TTW would be constrained by the 200' BWT downriver from Demopolis by necessitating the use of 6-barge, and not 8-barge, tows on that portion of the river and by the need for duplicate locks. If both hindrances were overcome, the BCR would rise to 1.30. Plaintiffs assail the accuracy of the 1976 economic reanalysis and say that, to arrive at 28 million tons of traffic moving over the TTW in 1986, the Corps has had to assume that the BWT south of Demopolis can accommodate two-way 8-barge traffic and has ignored the admitted constraints. According to plaintiffs, the 200' BWT can safely accommodate two-way traffic of no more than 4-barge tows. Plaintiffs also vigorously challenge the methodology of the Kearney transportation survey, claiming that it is based upon numerous false assumptions, incorrect and nonexistent data and completely fails to comply with traffic formulas mandated by statute as well as by the Corps’ own regulations. Plaintiffs present the affidavits of Dr. Joseph L. Carroll and Dr. Robert Haveman, economic experts, and other specialists which provide substantial factual support for their contentions. Defendants offer counteraffidavits of experts who furnish contrary opinions. Thus, genuine issues of material fact are raised which preclude the court from granting summary judgment if issues relating to benefit/cost computations are judicially reviewable. We continue to be of the opinion that benefit/cost computations insofar as TTW is concerned are not judicially reviewable. In the first place, plaintiffs are prevented from relitigating these issues. Plaintiffs in the first suit contended that “the navigation benefits were substantially overstated by the Corps,” 348 F.Supp. at 924, and invoked 33 U.S.C. § 701a as a statutory violation. The district court ruled that calculation of BCR was not subject to judicial review. On appeal the Fifth Circuit held that “whatever rights may exist under that statute [33 U.S.C. § 701a] have been subsumed by NEPA insofar as our review of the Tennessee-Tombigbee project is concerned.” 492 F.2d at 1134. It is to be noted that different statutes now relied upon by plaintiffs were enacted prior to 1971, were directly related to the economic issues raised in' the first complaint, and could and should have been raised at that time. Plaintiffs cannot escape the bind of res judicata. Plaintiffs state that res judicata should not apply for two reasons. The first reason-that alleged miscalculation of the BCR in the 1976 reanalysis had not taken place before 1971 and therefore could not have been litigated-merits scant attention. The issue litigated in the prior suit, which is the same as the issue plaintiffs would litigate here, is whether or not BCR calculations are agency action that is reviewable by a court of law. That the Corps made a particular BCR calculation after 1971 is immaterial to the prior conclusion that such calculations are not subject to judicial review. Plaintiffs’ second ground for not applying res judicata is that several parties plaintiff in the case sub judice were not before the court in the earlier suit and that therefore they cannot be bound by that suit. As previously noted, if the “new” plaintiffs are not bound by res judicata under the virtual representation doctrine, they are surely precluded by collateral estoppel from relitigating identical issues. We therefore sustain defendants’ pleas of res judicata and collateral estoppel and conclude that we are barred from reconsidering the issue whether BCR calculations are judicially reviewable under the cited statutes. Apart from res judicata, most courts have ruled there is no independent right of judicial review of statutes providing for benefit/cost computations by agencies for congressional review and action on public works projects. See, e. g., Sierra Club v. Froehlke, 392 F.Supp. 130, 141 (E.D. Mo.1975), aff’d, 534 F.2d 1289 (8 Cir. 1976); Cape Henry Bird Club v. Laird, 359 F.Supp. 404, 413 (W.D.Va.1973), aff’d, 484 F.2d 453 (4 Cir. 1973) (per curiam); EDF v. Corps of Engineers, 325 F.Supp. 728, 740 (E.D.Ark. 1970), aff’d, 470 F.2d 289 (8 Cir. 1972); Sierra Club v. Froehlke, 345 F.Supp. 440, 446-47 (W.D.Wisc.1972), aff’d, 486 F.2d 946 (7 Cir. 1973); Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29, 35 & n.ll (3 Cir. 1976); United States v. West Virginia Power Co., 122 F.2d 733, 738 (4 Cir.), cert. denied, 314 U.S. 683, 62 S.Ct. 187, 86 L.Ed. 547 (1941); EDF v. Froehlke, 473 F.2d 346, 356 (8 Cir. 1972); Atchison, Topeka and Sante Fe Railway Co. v. Callaway, 480 F.Supp. 972, 977 (D.D.C.1979). Although these decisions have been concerned with 33 U.S.C. § 701a, as in the past TTW suit, their rationale applies with equal force to the statutes mentioned by plaintiffs in Counts III and VI, since it is apparent that they were intended to furnish Congress data to enable it to reach legislative decisions for authorizing funding of particular water resource projects. 33 U.S.C. § 701-1, enacted in 1944, was to “continue the natural flood-control policy and program initiated by the Act of 1936 [33 U.S.C. § 701a].” The statute reaffirmed congressional policy on flood control projects by declaring that navigation projects should not be authorized or constructed unless there is “substantial benefit to navigation.” Similarly, the Water Resources Planning Act, 42 U.S.C. § 1962 et seq., passed in 1962, and the guidelines promulgated by the Water Resources Council, first appearing in 1962 as “Senate Document 97” and reissued in 1973, 38 Fed.Reg. 24778 (Sept. 10, 1973), had as their primary goal the furnishing of information to the President and Congress in connection with their planning efforts in the water resources field. Atchison, supra, at 978. See also H.R.Rep.No. 169, 89th Cong., 1st Sess. Neither do we believe that § 7(a) of the Department of Transportation Act of 1966, 49 U.S.C. § 1656(a) and the Corps Regulation ER 1120-2-114 permit judicial review. 49 U.S.C. § 1656(a) simply creates authority in the Water Resources Council to set up “standards for the economic evaluation of water resource projects and also requires the Council to adhere to a statutory definition of the ‘primary direct navigation benefits’ of such a project.” Atchison, supra, at 979 (emphasis added). These statutes and regulations serve the same purpose as 33 U.S.C. § 701a, i. e., to govern calculation of BCRs for the information of Congress. Perhaps the most succinct statement of nonreviewability of such statutes, apart from NEPA, may be found in EDF v. Corps of Engineers, 325 F.Supp. 728, 740 (E.D.Ark.1971): It is for the Congress to determine, in authorizing such a project and in, thereafter, making subsequent appropriations therefor, whether the benefits are “in excess of the estimated costs.” The Court does not believe that it has the authority to enjoin the expenditure of appropriated funds upon a showing that the benefits are less than the estimated cost. The plaintiffs and others are free to bring such matters to the attention of the legislative branch at the time any new appropriation for this project is proposed. Indeed, they could bring the matter to the attention of Congress at this time with the hope of obtaining legislation which would prevent the expenditure of funds already appropriated (which would obviously include those needed for the construction of the dam proper and the clearing of the lake). The methods of calculating cost-benefit ratios are innumerable and in many cases esoteric. The Court’s judgment as to sound procedures in this regard might well not be in accord with the judgment of Congress. And, as stated above, the Court does not believe it should, in any event, attempt to substitute its judgment for that of the legislature. (emphasis in original text). The same result may be found in Duck River Preservation Ass’n v. TVA, 410 F.Supp. 758, 766 (E.D.Tenn.1974). In Duck River the court rejected the argument “that TVA was required to recompute continually the benefit-cost ratio of the project” because inter alia the matter was legislative and “not subject to judicial review.” Id. A case relied upon by both sides is Atchison, supra, which construes the statutes at issue here. In Atchison the district court denied review of BCRs in the absence of NEPA because “Congress intended those laws to serve a more limited purpose than NEPA.” Id. at 977. Thus, “[t]he judiciary should defer to congressional expertise in the weighing of costs and benefits, except where Congress has indicated that judicial scrutiny is appropriate.” Id. Finding a lack of such indication in congressional silence, the court declined to review agency action, reasoning as follows: [These statutes’ and regulations’] primary goal is to provide the President and Congress with guidance in their planning efforts in the water resources field. See H.R.Rep.No.169, 89th Cong., 1st Sess. 3 & 5 (1965), U.S.Code Cong. & Admin.News 1965, p. 1921. Because these guidelines are intended for the primary benefit of Congress and the President, approval of a recommended project by these lawmakers vitiates whatever claims a party may possess regarding the Corps of Engineers compliance with the Act and regulations thereunder. In this case, Congress has itself weighed the costs and benefits and, by authorizing construction, indicated its finding that the benefits exceeded costs, within the meaning of the Water Resources Planning Act. Once Congress has reached a decision on this matter, courts should decline to interfere with the legislative judgment. Cf. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 527-528, 61 S.Ct. 1050, 1060, 85 L.Ed. 1487 (1941). In contrast to NEPA, Congress did not envision continuing judicial review to determine compliance with the Act.... All of the defects could have been — or were in fact — brought to the attention of Congress during the legislative process; yet, Congress decided to accept the proposal despite the alleged non-compliance with [these provisions]. The Court believes that congressional approval ... is tantamount to a finding that these oversights either never occurred or were, for the purposes of [these provisions], insignificant. It would certainly constitute an invasion of the legislative process for this Court to breathe new life into these allegations and then seek to determine their accuracy. Id. at 978. Finally, as held by the Fifth Circuit, Congress is the “ultimate decisionmaker” of the TTW. That court has explicitly held that although BCRs were reviewable through NEPA, even that review was foreclosed because Congress had determined that the waterway should be built. It must be emphasized that it is the Congress-not the Corps of Engineers-which has to this date® continued massive funding of the project. The record discloses that, just as in Atchison, supra, at 978 n.l, plaintiffs have presented to Congress allegations that the Corps has furnished Congress with false and misleading information about the waterway’s benefits and costs. Congress, at least since 1975, has considered not only data submitted by the Corps but also information supplied by plaintiffs, including the allegations of misrepresentation made here. The Corps itself reported to Congress the substance of plaintiffs’ allegations on justification sheets for the fiscal years 1979-1981. Notwithstanding plaintiffs’ allegations, Congress has not discontinued its support for the project. See EDF v. Alexander, 467 F.Supp. at 898 n.6. Of course, Congress is free to, and often does, make legislative decisions on factors outside the scope of judicial review; and it may, for whatever reason it sees fit, fund a water resources project which lacks a positive BCR. ■Plaintiffs argue that TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), has dismantled the notion that Congress is “the ultimate decisionmaker” merely by passing appropriation acts. Hill is readily distinguishable. The Court, in Hill, refused to regard congressional appropriations for the Tellico Dam as a repeal of the Endangered Species Act as it affected Tellico Dam. There “an irreconcilable conflict” was found to exist between the explicit provisions of a substantive statute and a project which Congress had funded. “The plain intent of Congress in enacting this statute [Endangered Species Act] was to halt and reverse the trend toward species extinction, whatever the cost.” 437 U.S. at 184, 98 S.Ct. at 2297. No such conflict here exists, for the legislative enactments relied upon by plaintiffs, i. e., the Water Resources Planning Act of 1965, the Department of Transportation Act of 1966, and the Flood Control Act of 1944, and regulations associated with those statutes, are not mandatory upon Congress but were enacted for the express purpose of furnishing data to enable-Congress to exercise its own judgment in the funding of particular water resources projects. For the foregoing reasons, plaintiffs have failed to state claims in Counts III and VI upon which relief can be granted, and those counts must be dismissed with prejudice. III. LOCAL ASSURANCES (a) Discount Rate. In Count IV plaintiffs allege that the defendants are violating § 80 of the Water Resources Development Act of 1974, 42 U.S.C. § 1962d-17(a), by using a 31/4% interest rate in effect prior to December 24, 1968, rather than the current interest rate (now 714%) to compute benefits and costs. Plaintiffs urge that the current interest rate is mandated by Congress and utilization of it would so greatly reduce benefits and greatly increase costs that costs would far exceed benefits, thus requiring the project to be placed in the inactive category under Corps regulations. By § 80(a) of the Water Resources Development Act, 42 U.S.C. § 1962d-17(a), the interest rate formula for waterway projects is determined by the Water Resources Council and the latest published rate is 7Vs%. 18 CFR § 704.39. Section 80(b) of the Act contains a “grandfather clause,” which provides that ah alternate interest rate may be used if two conditions have been met: (1) the project must have been authorized before January 3, 1969; and (2) the appropriate non-Federal interest, prior to December 31, 1969, must have given “satisfactory assurances to pay the required non-Federal share of project costs.” If both conditions are satisfied, “the discount rate to be used in the computation of benefits and costs .. . shall be the rate in effect immediately prior to December 24, 1968, and that rate shall continue to be used for such project until construction has been completed, unless otherwise provided by a statute enacted after March 7,1974.” TTW was, of course, authorized long before January 3, 1969. It is undisputed that a discount rate of 3V4% was in effect immediately prior to December 24, 1968 and no statute has been enacted since March 7, 1974, which would alter the requirements of § 80(b). The question remaining is whether the non-Federal interests envisioned by Pub.L.No. 79-525 (Alabama and Mississippi or their statutory agencies) did, prior to December 31,1969, give “satisfactory assurances to pay the required non-Federal share of project costs.” These local costs consist of alterations in highways, highway bridges, sewer, utilities, etc. Both sides seek summary judgment on this claim, and defendants also move for judgment on the pleadings. Plaintiffs urge that neither Alabama’s nor Mississippi’s assurances prior to December 31, 1969, or indeed since that date, are in fact satisfactory, that the assurances which have been given fail to satisfy Corps criteria, and that, since there is no reasonable prospect that the required local contributions will be forthcoming, the Corps has been under a duty since 1974 to place TTW in deferred status. Federal defendants mount several defenses: first, the plaintiffs have no standing to challenge a violation of § 80 of the Water Resources Development Act of 1974; second, that the determination of adequacy of local assurances of support for TTW, being solely a matter of agency discretion with no law or standards for a court to apply, is not susceptible to review under the Administrative Procedure Act; third, that plaintiffs’ challenge to the 3*/4% interest rate is barred by principles of res judicata, collateral estoppel and laches; fourth, that, if the merits of the claim are reached, plaintiffs cannot show the agency’s determination as to sufficiency of local contribution to be arbitrary and capricious; and finally, that even if a higher interest rate should be applied in computing, the benefits and costs of TTW, the remedy is not to grant plaintiffs an injunction but to require that Corps officials submit a revised benefit/cost analysis to Congress on the basis of the new rate. We first address the issue of standing since it poses a serious question whether plaintiffs may complain about a violation of § 80(b). To have standing plaintiffs must (1) allege and establish some injury-in-fact, and (2) show the interest they seek to represent is “arguably” within the zone of interests protected by the statute. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Data Processing Serv. Org’ns v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Section 80(b) does not expressly grant a private right of action. To be reviewable under the Administrative Procedure Act, 5 U.S.C. § 701, plaintiffs must show they suffer a legal wrong or are adversely affected by the agency action. Insofar as plaintiffs represent environmental interests, they are unable to show that any injury-in-fact would result from the failure of local contribution in altering highways, bridges, and utilities. Plaintiffs’ environmental interests are alleged to be harmed by the construction of TTW, and not by relocating public highways, bridges, and utilities, which would be affected by the waterway project. As defendants aptly observe, the environmental interests which plaintiffs seek to advance would be aided, at least not hindered, by the absence of local contribution. Two cases support the view that environmental plaintiffs have no § 80 standing. In Sierra Club v. Froehlke, 486 F.2d 946 (7 Cir. 1973), the court held environmental plaintiffs lack standing to assert that the Secretary of the Army failed to obtain local assurances of cooperation under § 201 of the Flood Control Act of 1962. That statute, which authorized the building of a flood control dam on Kickapoo River, contained a stipulation that the authorization would expire within five years unless the local interests (two downstream communities which were obligated to pay the cost of certain flood protection levees) gave “assurances satisfactory to the Secretary of the Army that the required cooperation will be furnished.” The court noted that the interests of the plaintiffs were two-fold: that some plaintiffs canoed on a portion of the river which would be inundated if the project was completed and that other plaintiffs owned land which would be condemned if the project continued. On this showing it was ruled that plaintiffs’ claim of injury was “the continuation and completion of the project . .. and not the per se failure of the Corps to obtain local assurances as required by statute.” Id. at 954. Additionally, the plaintiffs’ interests were held to be outside the “zone of interest” test for the statute under review since the plaintiffs’ interest related only to the construction of the dam and not to the downstream levees. The Seventh Circuit found that the plaintiffs there were unable to show an economic injury attributable to the construction of the local protection levees “with or without the required local assurances.” Id. The court also emphasized that although plaintiffs had standing to raise the NEPA claims, that did not “obviate any standing requirement for their ‘local assurances’ claim under § 201 of the Flood Control Act of 1962.” Id. Akers v. Resor, 339 F.Supp. 1375 (W.D. Tenn.1972), injunction cont’d, 443 F.Supp. 1355 (W.D.Tenn.1978), held that plaintiffs who represented environmental interests had no standing to complain that assurances of support by the State of Tennessee were insufficient to permit the enlargement of a canal under 33 U.S.C. § 701c. That statute provided that no money for the waterway project shall be expended until the states or other responsible local agencies “have given assurances satisfactory to the Secretary of the Army” to provide, inter alia, all lands, easements and rights-of-way necessary for the construction of the project. District Judge Bailey Brown found that the plaintiffs do not have standing to complain about a failure to comply with the aforesaid statutory provision. The interest that the plaintiffs seek to protect is that of ecology; and since such interest is not arguably within the zone of interest intended to be protected by this statutory provision, they do not have standing. Id. at 1378 (citing Data Processing, supra). Plaintiffs cite two cases which recognize § 80 standing. Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29 (3 Cir. 1976), and State of Alabama ex rel. Baxley v. Corps of Engineers, 411 F.Supp. 1261 (N.D.Ala.1976). In Grant, the construction of a flood control dam was authorized by the Watershed Protection and Flood Prevention Act of 1954, 16 USC § 1001, et seq. The plaintiffs were owners of property situated in the area immediately surrounding the proposed dam and alleged that construction of the dam would diminish the value of their property and impair their enjoyment of the area’s recreation and aesthetic resources. The court found these interests to be sufficient to satisfy the requirement of injury-in-fact. 537 F.2d at 33. The court also found that the interests asserted by plaintiffs were arguably within the zone of interest sought to be protected by the statute since § 1 of the Act, 16 U.S.C. § 1001, identified one of the purposes of the statute to be the goal of “preserving, protecting, and improving the Nation’s land and water resources and the quality of the environment.” Id. Neither of these conditions is present here. In Baxley, the district court held that the State of Alabama, in an action brought by the state attorney general, had standing to sue under § 80. 411 F.Supp. at 1266. That case is readily distinguishable since it did not involve a right of action brought by a private party. Plaintiffs also urge that, quite apart from environmental concerns, Louisville and Nashville Railroad (L&N) has § 80 standing because it will sustain economic injury upon the completion of the waterway. In this respect, p