Appeals from judgments of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, enjoining further construction of the Westway highway project because of violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, the Clean Water Act, 33 U.S.C. § 1344, and § 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403. Held: Federal Highway Administration violated NEPA; Army Corps of Engineers violated NEPA and Clean Water Act; those agencies must reconsider impact of proposed Westway landfill on Hudson River fisheries, prepare supplemental environmental impact statement on those issues, and maintain records concerning their reconsideration; injunction against landfill pending such reconsideration affirmed; injunction ordering agencies to prepare updated environmental impact statement on nonfisheries issues vacated; appointment of special master vacated. Affirmed in part, reversed in part, and vacated in part.
Oakes, Meskill, and Kearse, Circuit Judges.
These are appeals by state and federal defendants and a cross-appeal by plaintiffs Sierra Club, et al. ("Sierra Club"), from judgments of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, upholding in part plaintiffs' challenge to the federal defendants' approval of Hudson River landfill in connection with a proposed New York City highway known as "Westway." The court ruled that defendants United States Army Corps of Engineers (the "Corps") and Federal Highway Administration ("FHWA") had violated the National Environmental Policy Act, 42 U.S.C. § 4332 (1976) ("NEPA"), and that the Corps had violated the Clean Water Act, 33 U.S.C. § 1344 (Supp. V 1981), and § 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403 (1976) ("Rivers and Harbors Act"), by making inadequate investigations and disclosures concerning the impact of the Westway landfill project on fisheries in the Hudson River. The court enjoined further construction of the project pending reconsideration by FHWA and the Corps in compliance with the statutes, ordered special record-keeping in connection with the reconsideration, and appointed a special master to supervise compliance. FHWA, the Corps, and defendant William C. Hennessy as Commissioner of the New York State Department of Transportation ("NYSDOT") challenge various aspects of these rulings. In its cross-appeal Sierra Club seeks reversal of so much of the district court's decision as found the Corps, in other respects, in compliance with NEPA, the Clean Water Act, and § 9 of the Rivers and Harbors Act.
For the reasons below, we affirm the district court's judgments except insofar as they (1) upheld plaintiffs' claim that the Corps had violated § 10 of the Rivers and Harbors Act, (2) required FHWA and the Corps to include in a supplemental environmental impact statement current information on nonfisheries issues, (3) prohibited FHWA and the Corps from acting as joint lead agencies in preparing a supplemental environmental impact statement, and (4) appointed a special master.
The background of the present litigation is more fully set forth in two opinions of Judge Griesa, reported in Action for Rational Transit v. West Side Highway Project, 536 F. Supp. 1225 (S.D.N.Y. 1982), see note 14 infra, and Sierra Club v. United States Army Corps of Engineers, 541 F. Supp. 1367 (S.D.N.Y. 1982). Familiarity with both opinions is assumed. Except to the extent indicated, the following statement of facts reflects findings of the district court or evidence of record as to which we see no substantial dispute.
A. Initiation of the Westway Project, the Draft EIS, and the Criticisms
"Westway," the currently proposed Manhattan highway intended to replace the southernmost portion of the deteriorating West Side Highway, had its origins in a 1971 agreement reached among New York City, New York State, and FHWA in connection with major revisions of the interstate highway system in the New York metropolitan region. The plan began to take shape in 1972, when the State and the City jointly established an administrative entity called the "West Side Highway Project" (the "Project") under the jurisdiction of NYSDOT to plan the replacement for the West Side Highway. The Project was comprised almost entirely of outside consulting firms, the chief of which was Systems Design Concept, Inc. ("Sydec"), whose principal, Lowell K. Bridwell, was Executive Director of the Project from 1972 until 1981.
Beginning in 1972, the Project spent many months developing policy statements and goals to use in planning the location and design of the replacement highway. At some point it became apparent that construction of the replacement highway would require preparation of an environmental impact statement ("EIS") pursuant to § 102(2)(C) of NEPA,*fn1 to describe the environmental consequences of the construction. The staff and consulting firms associated with the Project prepared, within their respective areas of expertise, draft sections of such a statement. Sydec assembled all of the sections in a single draft, and submitted it to NYSDOT and FHWA for review.
On April 25, 1974, a formal draft environmental impact statement ("DEIS") was issued, signed by NYSDOT and FHWA, presenting five alternative plans for the replacement highway and analyzing the alternatives in terms of community needs and environmental concerns. The DEIS discussion of the replacement highway's expected impact on fisheries in the Hudson River was based on a 1973 biological survey conducted by one of the Project's consulting firms. It concluded that the interpier area was populated only by relatively few species of fish (tomcods) and invertebrates. In accordance with 40 C.F.R. § 1500.7(a) (1974), the DEIS was circulated for public comment.
Most of the responses to the DEIS related to an alternative referred to as the "outboard" alternative, which included a proposal for the highway to be built on landfill between bulkhead and pierhead lines (the "interpier area") on the river. Three federal agencies submitted comments to NYSDOT. The National Marine Fisheries Service ("Fisheries Service") informed NYSDOT that it did "not believe that the statement provide[d] sufficient information to permit a valid assessment of probable environmental impacts," particularly with respect to marine resources. The United States Federal Wildlife Service ("Wildlife Service") and Environmental Protection Agency ("EPA") also submitted comments which focused tangentially on marine impacts.*fn2
Following issuance of the DEIS and the Project's receipt of comments, city agencies, with Project support, reviewed the outboard alternative and recommended the construction of a modified version of that alternative. This recommendation was approved by the Governor and the Mayor on March 7, 1975, and Westway was the name given to the approved alternative.
After publication of the DEIS, the Project reevaluated the alternatives and completed further engineering and environmental studies. The environmental studies included a Technical Report on Water Quality ("Water Report") based on the same 1973 fisheries data that had been used to formulate the DEIS's discussion of the project's impact on fisheries. The Water Report stated that relatively few species of fish could tolerate the existing conditions of the interpier area and that, although the area might be used to a limited extent in migration, modern-day pollution made the area a "biological wasteland."
After receiving the comments on the DEIS, the Project staff reevaluated the outboard alternative and prepared a new document, as required by 40 C.F.R. § 1500.7(a) (1974); see also NEPA § 102(2)(C), incorporating the comments and its responses to them, to become part of the final environmental impact statement.*fn3 The final environmental impact statement ("FEIS" or "January 1977 EIS") recommending Westway, signed by NYSDOT and FHWA, was issued on January 4, 1977.
The FEIS analyzed the Westway alternative as it related to, inter alia, the quality of urban development, traffic patterns, air quality, noise, water quality, and the impact of the proposed landfill on the aquatic habitat of the interpier region. Noting that the interpier area was "biologically impoverished," the FEIS stated that Westway would create an estuarine habitat in the interpier area that
will closely resemble that of the main channel. The inter pier basins are presently almost devoid of macro organisms, and therefore the landfilling of the basins will cause a minimal loss of estuarine productivity for species other than micro organisms. Since the inshore area is biologically impoverished, the placement of landfill will have little impact on the overall productivity of the Hudson estuary. As noted earlier in this discussion, future dissolved oxygen levels throughout the Lower Hudson are expected to improve substantially with the complete implementation of wastewater treatment programs. This improvement will provide an attractive habitat for more diverse and numerous estuarine species in future years.
Fluctuations in salinity along the Modified Outboard edge would be much less severe than the changes now occurring in the inter pier basins. The layering of fresh, brackish, and salt water which characterizes the main channel will also apply to the Modified Outboard shoreline. The rise and fall of these layers caused by tidal action will be gradual enough to permit shore migrations along the edge for species requiring a stable habitat. The preferable edge treatment for the Modified Outboard shore would be riprap because it can provide a greater variety of dwelling areas and can attract more species, both those resident along the edge and fishes which feed on these creatures.
The Water Report, which had similarly described the interpier area as a "biological wasteland," was appended to the FEIS.
Like the DEIS, the FEIS had been drafted by Sydec, under the supervision of Bridwell, and had been reviewed by FHWA. FHWA administrators testified, however, that either they had been unaware of the Fisheries Service's comment that the fisheries information in the DEIS was inadequate, or they had considered the matter unimportant in relation to other Westway concerns.
On January 4, 1977, the day the FEIS was issued, FHWA approved federal funding for Westway. FHWA design and location approvals were issued soon thereafter.
C. The Application for a Landfill Permit, the Federal Agencies' Opposition, and the New Fisheries Data
Because Westway would require landfill in the Hudson River, approval was required from the Army Corps of Engineers pursuant to § 404 of the Clean Water Act,*fn4 and § 10 of the Rivers and Harbors Act.*fn5 On April 7, 1977, NYSDOT applied to the Corps for a permit. On April 22, 1977, the Corps issued a notice of public hearing on the application, thereby beginning the "public interest review" process required under the Clean Water Act prior to a Corps decision on whether to issue the permit. See 33 C.F.R. § 320.4(a) (1981).*fn6 The Corps notice also announced that FHWA was to be considered the "lead" federal agency in the project, see 40 C.F.R. § 1500.7(b) (1974),*fn7 and that the FEIS that had already been published had been reviewed by the Corps and was adequate for Corps purposes.
The public interest review procedures require the Corps decisionmakers to consult with, and give great weight to the views of, Fisheries Service and Wildlife Service, see 33 C.F.R. § 320.4(c) (1981),*fn8 and to coordinate with EPA, see 33 C.F.R. § 323.5 (1981).*fn9 Within the Corps, the initial decision would be made by the district engineer; objections by other federal agencies could lead to successive reviews by the division engineer, the chief of engineers, and the Assistant Secretary of the Army. See 33 C.F.R § 325.8 (1981).*fn10 Following the Corps's April 22, 1977 notice, Fisheries Service, Wildlife Service, and EPA submitted to the Corps district engineer their objections to the issuance of the permit. Fisheries Service opposed the permit on the ground that the landfill would have a negative effect on the marine habitat. Wildlife Service opposed the permit on the ground that the marine habitat in the landfill area would become very active in the near future as a result of pollution control laws and that construction of Westway would therefore permanently preempt a potentially productive piscine population. EPA took the position that there were insufficient data available concerning the impact of the project on marine life and that, under applicable law, the permit therefore could not be issued.
The district engineer did not respond to the three agencies' objections, but instead forwarded them to the Project. The Project's response, which took the form of a several-hundred-page document, dated May 16, 1978, was submitted to the district engineer after review by FHWA; it (1) concluded that the predictions of a negative impact on the marine habitat were not well taken, because the Water Report demonstrated that the interpier area "functions neither as a nursery and migration area nor as a source of primary productivity to any extent"; (2) essentially repeated the conclusion of the FEIS that, even with the proposed landfill, the interpier area would be increasingly hospitable to numerous estuarine species; and (3) took the position that EPA's stance was "fundamentally biased and prejudged," and that its statement contained "sufficient inaccuracies, misinterpretations and misrepresentations" to render EPA's opinion "meaningless."
Fisheries Service, Wildlife Service, and EPA found these responses unsatisfactory. Wildlife Service and EPA stated that the Project had provided no new information to change their views, and Fisheries Service suggested that the Project "may not fully appreciate estuarine processes." The agencies conveyed these views to the district engineer during the summer of 1978. The district engineer also received letters of objection to the permit from New York City officials, private individuals, and various organizations. The district engineer forwarded these letters to FHWA, which took the position that the January 1977 EIS was completely adequate.
In December 1978, however, EPA persuaded NYSDOT to make a further biological study of the interpier region. The Project commissioned the engineering firm of Lawler, Matulsky & Skelly ("Lawler") for that purpose. The planned scope of the Lawler study was developed in consultation with Fisheries Service, Wildlife Service, and EPA. The Corps took no part in these discussions. In May 1979, shortly after the Lawler study had begun and six months before its scheduled completion, the Corps district engineer preliminarily approved the landfill permit. A formal document embodying the approval was issued in September 1979 on the basis of reports prepared in part by Linda Monte, a Corps biologist then at the district level, who later moved to the division level where she was also assigned to the Westway matter. Monte's report discussed the effects of the proposal on aquatic environments and concluded that the Lawler data would not be necessary for a decision on the Westway permit and that no supplemental EIS ("SEIS") was required.
Because of the continuing objections of the Fisheries Service, Wildlife Service, and EPA to issuance of the permit, however, the district engineer's decision was submitted for review by the division engineer. The review in the division engineer's office resulted in a conclusion that the FEIS contained little useful information on the fisheries question, and the division engineer decided to await the results of the Lawler study before making his decision on the permit.
By the end of 1979, the Lawler sampling had revealed significant numbers of fish in the interpier area, and the study was extended to cover the thirteen-month period from April 1979 through April 1980. Lawler regularly forwarded its sampling data to the Project. The Project, however, relayed only limited information about the results to FHWA and to Monte. The Corps division engineer requested the Lawler data in late 1979 and early 1980. The Project refused to provide them, however, on the ground that the Corps might be forced to reveal the data under the Freedom of Information Act, 5 U.S.C. § 552(a) (1976 & Supp. V 1981). Finally, in June 1980, the Project furnished copies of an early Lawler "progress report" to the division engineer's office and EPA. This progress report included data only through November 1979, although several months' later data had been collected and showed, for the most part, that the months of greatest abundance of fish in the interpier area had been October 1979 through April 1980.
The Lawler progress report provoked the Corps in mid-August 1980 to request a meeting with the Project and FHWA to discuss "mitigation" measures to be taken, see 33 C.F.R. § 320.4(c),*fn11 i.e., measures to minimize the loss of fisheries habitat or to compensate for its loss. By that time, the Project had received a draft copy of the final Lawler report, which it had forwarded to NYSDOT and FHWA, but not to the Corps. The mitigation meeting was held on August 13, 1980, and it was agreed that the Project would develop mitigation concepts and that FHWA would consider funding the cost of mitigation.
In late August 1980, EPA informed the Corps that it felt the Lawler data it had been given showed the landfill would result in a loss of habitat for certain species of fish, including white flounder, white perch, and striped bass. Attorneys for Sierra Club, who had obtained interim Lawler data, contended to the Corps that the data required a SEIS. The Corps sought the view of the FHWA as to whether a SEIS was required; FHWA in turn referred the matter to the Project and continued to express interest in the subject of mitigation.
At a mitigation meeting on September 8, 1980, the first complete volume of the Lawler study was finally furnished to the Corps and to Fisheries Service, Wildlife Service, and EPA. The last three agencies persisted in their objections to the Corps's issuance of the Westway permit. Nevertheless, on November 26, 1980, the division engineer informed the agencies that he had concluded that the landfill would not be detrimental to aquatic life in the interpier area, and that he would recommend issuance of the permit. The division engineer acquiesced in FHWA's advice that no SEIS was necessary. He recommended to FHWA, however, that the Lawler report be filed with EPA as "supplemental information" to the FEIS and circulated to concerned agencies and interested public parties who had provided comments on the DEIS and the FEIS. Apparently this was never done.*fn12
In late 1980 and early 1981, Fisheries Service, Wildlife Service, and EPA again requested review of the permitting decision, this time by the Corps chief of engineers, on the grounds of adverse, insufficiently mitigated impact on fishery resources.*fn13 Fisheries Service expressed concern that the information on which the permitting process had relied was biased. On February 18, 1981, however, the Corps chief of engineers approved the landfill permit, and the objecting agencies decided not to appeal the decision to the Assistant Secretary of the Army. Fisheries Service stated that it lacked a "firm conviction" that the project would result in "severe, irreversible environmental degradation."
D. Proceedings in the District Court
In March 1981, plaintiffs commenced the present suit*fn14 against the Corps and NYSDOT, attacking issuance of the landfill permit on several grounds. Their principal claim was that the January 1977 EIS was inadequate because of the insufficiency of its treatments of fisheries, the relationship of Westway to the development of the West Side of Manhattan, traffic and air quality impact, problems associated with toxic chemicals and flooding, alternatives to Westway, and the possibility of a funding shortfall. Plaintiffs contended that, by relying on the inadequate FEIS, the Corps had violated NEPA, the Clean Water Act, and § 10 of the Rivers and Harbors Act. The other grounds of plaintiffs' challenge included the contention that the landfill permit should be voided because the landfill would be a "dike" within the meaning of § 9 of the Rivers and Harbors Act and hence would require the express authorization of Congress.
The district court granted summary judgment dismissing all of the claims except those concerning the FEIS's treatment of the fisheries issue, and held a bench trial as to the latter ("First Trial"). Following the trial, in a thorough opinion dated March 31, 1982, reported at 536 F. Supp. 1225, Judge Griesa found, inter alia, that striped bass is one of America's most highly esteemed game and food fishes, attracting millions of fishermen, both sport and commercial, each year and commanding increasingly high prices in the market; and that the Hudson River is the second most important contributor of striped bass to the Atlantic Coast fishery, providing 18-32% of all the striped bass in the New York Bight and Long Island Sound. As contrasted with the FEIS's characterization of the Hudson interpier area as a biological wasteland, the court found that that area in winter houses a concentration of juvenile striped bass. The court found that the Corp's treatment of the fisheries issue failed to meet the requirements of NEPA. His opinion stated in part as follows:
The most significant environmental impact requiring consideration by the Corps of Engineers was the impact of the proposed landfill on fishery resources. The Corps was under a duty to make reasonable effort to ascertain the facts, and then to set forth those facts in an environmental impact statement. Under the mandate of NEPA, the Corps was required to make a full disclosure of the information about fishery resources, and to give an opportunity for comment by interested parties. As part of this process, the Corps was required to make public the views of the federal agencies with jurisdiction and expertise on the subject of fisheries.
The total failure of the Corps to comply with these obligations has been demonstrated beyond any question. At no point did the Corps make any effort of its own to ascertain the facts about marine life in the interpier area. It was content to rely upon the January 1977 EIS, despite warnings for EPA, [Fisheries Service] and [Wildlife Service] that the information in this statement about aquatic impacts was probably unreliable. After the [Lawler] report was obtained, at the instance of the other agencies, the invalidity of the conclusions in the January 1977 EIS regarding aquatic impact was proved. The interpier area was shown to be a highly significant and productive habitat for fish, including striped bass. The proposed landfill would have the impact of destroying this habitat. The Corps was obligated under NEPA to publicly disclose this information and this impact in an environmental impact statement. It did not do so. Instead, it acquiesced in the urgings of [NYSDOT] and the FHWA to withhold the information.
Aside from public disclosure, the Corps had the obligation to develop a full and adequate environmental impact statement in order to ensure that its own deliberations took into account the relevant facts and the environmental impacts. The record in this case demonstrates the salutory [ sic ] nature of this legal requirement, and the total non-compliance by the Corps. The District Engineer's recommendation was made without having any reliable fishery information whatever. The Division Engineer acted following receipt of the [Lawler] report, but obtained no appropriate technical assistance from the Corps' own biologists or from the other federal agencies with expertise. The Chief of Engineers quickly affirmed what was done at the lower levels. This wholly inadequate procedure would have been avoided if the District Engineer had promptly instituted steps to prepare and promulgate an environmental impact statement as required by NEPA.
Because of the failure of the Corps to comply with NEPA, its issuance of the Westway landfill permit was invalid and must be set aside.
Id. at 1252-54. The court found that the Corps's failures also violated the Clean Water Act and § 10 of the Rivers and Harbors Act. Id. at 1254.
On April 14, 1982, the court entered a judgment in favor of the plaintiffs which granted the following principal relief: (1) voided the Westway landfill permit granted by the Corps; (2) ordered that, in the event NYSDOT applied for a new permit, the Corps was to undertake proceedings in accordance with NEPA, the Clean Water Act, and § 10 of the Rivers and Harbors Act, including (a) preparation of an adequate supplemental EIS with respect to the fisheries issues, (b) inclusion in the SEIS of current information on subjects other than fishery resources, (c) an independent evaluation of all fisheries data collected during the Lawler study, (d) after consultation with Fisheries Service, Wildlife Service, and EPA, the undertaking or contracting for such additional fisheries studies as the Corps concludes are necessary for its independent evaluation; and (3) enjoined any further Westway activities affecting the bed or waters of the Hudson River pending the Corps's reconsideration. The court ordered the Corps to keep records of all activities in relation to any new application and its consideration thereof. (Judgment dated April 14, 1982 ("April Judgment").) The court interpreted the April Judgment as requiring that the SEIS be prepared by the Corps itself, and not jointly by the Corps and FHWA.
On April 13, 1982, at the suggestion of the district court, plaintiffs had moved to amend their complaint to add the United States Department of Transportation and FHWA, and officials of those agencies, as defendants to the present action. Plaintiffs contended (1) that the FHWA design, location, and funding approvals of Westway were invalid because the January 1977 EIS was misleading and incomplete, in violation of NEPA, and (2) that in any event, developments following the issuance of the FEIS, including the Lawler study, the adverse comments of Fisheries Service, Wildlife Service, and EPA, new proposals for alternatives to Westway, urban renewal on the West Side, increases in the cost of Westway, and increases in the estimated levels of traffic and air pollution resulting from the construction and operation of Westway, mandated preparation of a supplemental EIS on all of these issues. On April 20, 1982, the district court granted the motion to add the new federal defendants, stating that it would be anomalous to enjoin the Corps from proceeding on the basis of the FEIS without also enjoining the agency that had signed the FEIS and was to fund the project.*fn15
Following a trial with respect to the new federal defendants ("Second Trial"), the district court issued an opinion on June 30, 1982, reported at 541 F. Supp. 1367, ruling in favor of plaintiffs only on their claim that the FEIS was inadequate with respect to fisheries impacts. The court held that on this issue FHWA had failed to comply with NEPA, finding
that the information in the January 1977 EIS regarding fisheries was untrue. The authors of the EIS knew, or should have known, that they had no basis for the presentation made on this subject. Subsequently, when the data from the fishery study became available, this [sic] data demonstrated positively the falsity of the EIS on the subject of fisheries. The FHWA was under a duty to file a supplemental environmental impact statement setting forth the facts. The FHWA wilfully refused to take the necessary corrective action.
The evidence at the second hearing not only demonstrated the failure of the FHWA to fulfill its own obligations under NEPA, but also reinforced the evidence presented at the first hearing to the effect that the FHWA and [NYSDOT] colluded in a successful effort to persuade the Corps of Engineers to refrain from issuing an environmental impact statement in connection with the landfill application.
Id. at 1370. In particular as to the FEIS's fisheries information the court found that
FHWA and [NYSDOT] lacked a sufficient basis for making the assertions on the subject of fishery impact which are contained in the 1977 EIS. . . . They realized that the sampling which had been carried out in preparation for the January 1977 EIS was inadequate [and] that the reason the earlier study revealed virtually no fish in the interpier area was that the study was made at a time of year which was not representative and the sampling techniques were faulty. The court concludes that those responsible for preparing the fishery material in the January 1977 EIS knew, or should have known, of the lack of factual basis for what was stated.
This does not mean that, as of 1977, there was any substantial body of information positively indicating that the interpier area was a fish habitat. The point is that the January 1977 EIS categorically asserted the opposite. There was no basis for such a presentation.
Id. at 1371-72. Finally, the court concluded that
since the January 1977 EIS did not make a true or adequate presentation on the subject of fisheries, the FHWA had the obligation to issue a correct supplemental EIS, something which it has never done.
Even if one could say that the January 1977 EIS was justified on the basis of the information then existing, nevertheless the [Lawler] fisheries data constituted information of such importance on the subject of environmental impact that the FHWA was under a duty to issue a supplemental EIS.
Such a duty of supplementation is implicit in NEPA. . . .
It can hardly be doubted that the [Lawler] fisheries data constituted significant information relevant to environmental concerns and bearing on the impact of the proposed Westway project.
The FHWA, in collaboration with [NYSDOT], acted in willful derogation of the requirements of law in failing to issue a corrective supplemental environmental impact statement. The FHWA fully recognized the serious nature of the environmental impact which had been revealed by the new ...