Appeal from final judgment of the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, dismissing the complaint which alleged violations of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., and the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251 et seq., and denying plaintiffs' request for permanent injunctive and declaratory relief against further dumping of polluted dredged spoil at the New London Dumping site in Long Island Sound. Reversed in part and Remanded.
Clark, Associate Justice,*fn* Mansfield and Mulligan, Circuit Judges. Mulligan, Circuit Judge, dissenting.
MANSFIELD, Circuit Judge:
The Natural Resources Defense Council, Inc., Environmental Defense Fund, Inc., The Long Island Sound Taskforce, The Fishers Island Civic Association, Inc., along with other environmental and citizen groups, brought this action in the District of Connecticut against the Secretary of the Army, the Secretary of the Navy and other related federal officials seeking declaratory and injunctive relief against further dumping by the United States Navy of highly polluted dredged spoil at the New London Dumping Site in Long Island Sound.*fn1 The complaint charges violations of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. ("NEPA"), and the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq. ("FWPCA"). The State of New York has been allowed to intervene as an appellant.
The action arises out of a project undertaken by the United States Navy at New London, Connecticut. In order to accommodate a new class of submarine, the SSN 688 class, at the Navy's Submarine Base in Groton, Connecticut, the Navy has determined that it is necessary to dredge the Thames River from Long Island Sound to Groton, Connecticut, a distance of 7.5 miles. The new class of submarine is larger and requires a greater depth of water for operations than previous classes and the Navy is accordingly widening and deepening the existing Thames River Channel. This dredging operation requires the removal from the Thames River bottom and disposal of approximately 2.8 million cubic yards of highly polluted material containing volatile solids, industrial wastes and Kjeldahl nitrogen.
The dredging project began on August 19, 1974, and the first phase of dredging, involving the lower reaches of the river, is now complete. The second phase, involving the upper portion of the channel, is scheduled to commence in March 1976 and is to be completed before the arrival of the new submarines at Groton, scheduled for later in 1976. The parties agree that the material to be dredged in the second phase contains considerably larger quantities of pollutants than the material already dredged.
Plaintiffs and intervenors do not object to the dredging project itself, choosing to restrict their legal challenge to the Navy's use of the New London Dumping Site as the disposal area. All parties agree that, because the polluted material is likely to cause great harm to the ocean ecosystem if allowed to disperse after being dumped, it is important that if it is dumped in the ocean it be deposited at a "containment site," an area of the ocean floor where currents and other water movement will not cause it to move or disperse. The underlying disagreement between plaintiffs and the government defendants is over the relative merits of the New London Dumping Site as a containment site and the existence of more suitable sites for disposal both in the ocean and on land. Plaintiffs adduced substantial evidence that because of the shallow depth of the site, the fact that the bottom currents there were higher than at some alternative sites, and the prospective impact of storms, the sludge dumped at the New London Dumping Site, although it would remain in place for a while, would eventually break up and disperse to the northwest where it would contaminate and destroy the first nurseries and marine resources on the coast.
Plaintiffs raised three principal claims before the district court: 1) that the Army Corps of Engineers issued a dumping permit to the Navy in violation of § 404 of FWPCA, 33 U.S.C. § 1344, 2) that the Navy and the Corps failed to comply with NEPA in reaching the decision to dump at New London in that a) the Corps, not the Navy, was the proper party required to prepare the necessary Environmental Impact Statement ("EIS"), b) the EIS inadequately discussed other dumping projects and alternative dumping sites, c) the NEPA decision-making procedures were shortcircuited, and d) there were errors in the EIS, and 3) that the substantive decision by the Navy to use the New London site was arbitrary and capricious. In a thorough and carefully considered opinion the district court, M. Joseph Blumenfeld, Judge, rejected all of these contentions, holding that it lacked jurisdiction under FWPCA, that the Navy was the proper EIS author and that the EIS was adequate in all respects.*fn2 The plaintiffs-appellants now take issue with all of the district court rulings except those dealing with the alleged errors in the EIS.
We hold that jurisdiction exists under FWPCA and that the discussion in the EIS of other dumping projects and alternative dump sites was inadequate under NEPA. Accordingly, we reverse and remand as to those issues. Since there is a substantial risk that additional amounts of highly polluted spoil will be dredged and dumped in non-compliance with the FWPCA and NEPA we direct that the Navy be enjoined from such activity until it has satisfied the requirements of these laws. In all other aspects we affirm the district court's opinion.
1. Jurisdiction Under FWPCA.
Under § 404 of FWPCA33 U.S.C. § 1344, the disposal of dredged material at the New London site requires a permit from the Army Corps of Engineers.*fn3 Appellants argued below that the permit for this dumping was issued in violation of § 404(b) of FWPCA because it was not, as required by that section, issued in accordance with dumping guidelines developed by the Administrator of the Environmental Protection Agency ("EPA"). The district court never reached the merits of this contention, however, as it held that it lacked jurisdiction under § 505(a) of FWPCA, 33 U.S.C. § 1365(a), which authorizes citizen suits for violation of the statute. Section 505(b) places certain restrictions on the bringing of lawsuits under § 505(a), including the requirement that no suit or action be commenced "prior to sixty days after the plaintiff has given notice of the alleged violation" to the EPA and other interested parties. Such notice was given by the plaintiffs herein on July 15, 1974, but the action was commenced on September 3, 1974, less than 60 days later. The district court reasoned that the 60-day waiting period is a jurisdictional prerequisite to suit and therefore dismissed the claim.
As conceded by the government, the district court's dismissal of the FWPCA count on this ground turns out, by reason of our later decision in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 938-39 & n.62 (2d Cir. 1974) cert. granted, 423 U.S. 809, 96 S. Ct. 19, 46 L. Ed. 2d 29 (1975), to have been in error. We there held that the 60-day notice provision is not an absolute bar to earlier suits by private citizens under FWPCA. Aside from the issue of whether less than 60 days will satisfy § 505(b) so as to permit a suit to be brought under § 505(a), it was held in Natural Resources Defense Council, Inc. v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 698-703 (D.C. Cir. 1975), cited with approval and followed in our decision in Conservation Society, that § 505(a) is not the exclusive jurisdictional basis for suit under FWPCA and that jurisdiction of claimed violations of FWPCA can exist under either the general federal question statute, 28 U.S.C. § 1331, or the Administrative Procedure Act, 5 U.S.C. §§ 701-06. The result is to give effect to the saving clause of § 505(e) of FWPCA, 33 U.S.C. § 1365(e), which is intended to preserve all other rights prospective citizen plaintiffs may have under other statutes to seek enforcement of FWPCA provisions.*fn4 The jurisdiction found to exist under § 1331 for NEPA purposes also exists for FWPCA purposes.*fn5
The government argues that, even if there is jurisdiction over the FWPCA claim, there has been no violation of § 404(b). The only guidelines that have been issued to date by the EPA for use under § 404(b) are the Ocean Dumping Criteria, 40 C.F.R. Part 220 et seq., which are not directly applicable to this dumping project in inland waters. (Long Island Sound has been deemed by the government to be inland waters, both in nautical charts and under a definition found in § 3(b) of the Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. 92-532, 86 Stat. 1052). Because of this lack of guidelines, the government argues, there cannot have been any failure by the Corps to issue the dumping permit in violation of EPA guidelines. However, we are not here dealing with non-existent guidelines. In its notice of intent to issue the dumping permit to the EPA, the Corps made specific reference to the Ocean Dumping Criteria, stating that § 227.64 thereof, which prohibits dumping in areas where prevailing currents would carry the dumped material into nursery, fishing or shoreline areas,*fn6 would not be violated by disposal at the New London site. Having relied at least in part upon the standards of the Ocean Dumping Criteria to support its selection of the New London site, the Corps cannot now be heard to say that those standards are irrelevant to its issuance of the permit for this dumping project. By its own use of the standards it has made them applicable to this case. The federal courts therefore have the power and the duty to review the application of the Criteria to the extent that they were used by the Corps, cf., e.g., Feliciano v. Laird, 426 F.2d 424, 429 (2d Cir. 1970); Smith v. Resor, 406 F.2d 141, 145-46 (2d Cir. 1969).
The record also contains evidence that would support findings to the effect that dumping at the New London site violates the Ocean Dumping Criteria as set forth in § 227.64. Plaintiffs introduced considerable proof to the effect that because of the depth and ocean current conditions in the area the highly polluted dredged spoil, despite its initial cohesiveness as a gelatinous mass, would eventually break up and drift northwestward to the Connecticut coast where it would destroy productive fishing and shellfish nurseries and spawning. See testimony of Dr. W. Frank Bohlen, App. 126-27, 131-35, 159-60, 478-80 and Exs. 6A, 13. In response the Navy relies principally upon a study of currents in the area, which plaintiffs label as of little or no value because it was limited to a 25-hour period. App. 303, 451, 497-500. The Navy also relies upon a current monitoring program that it has been required by EPA to undertake. However, plaintiffs point out that since the polluted spoil would not break up and disperse to the northwest for a few years the monitoring program would not avoid the damage, which would already have been done and would be irreversible once the dumping had been completed. Furthermore, say the plaintiffs, the monitoring program will be terminated in two years, which is too soon to determine the long-term polluting effect on coastal fisheries of the dumping at the New London site.
Rather than resolve these FWPCA issues upon the record as it stands we prefer to remand the case for findings by the district court which will have the benefit not only of observation of the witnesses who have already testified but also of such additional expert testimony and documentary proof as the parties may offer. Furthermore, should the district court conclude that further Navy dumping on the New London site would violate the Ocean Dumping Criteria which have been adopted and applied as guidelines it may then be called upon to determine whether the Corps is able to sustain its burden of showing that selection of the New London site, as distinguished from some other alternative site which satisfies the Criteria, is justified because of the New London site's economic impact on navigation and anchorage.
2. Authorship of the EIS.
The plaintiffs' next contention concerns the authorship of the EIS, which was prepared by the Navy.*fn7 Section 102 (2) (C) of NEPA, 42 U.S.C. § 4332 (2) (C), requires that an EIS be prepared "by the responsible official" for the federal project in question. Plaintiffs argue that the Corps of Engineers, through its power to grant or deny permits, 33 U.S.C. §§ 403 & 1344, controlled the environmental decisions connected with the project, including the dredging, designation of disposal site, and dumping of the spoil, whereas the Navy was a mere permit applicant, and that the Corps was therefore the federal agency primarily responsible for the project and for the preparation of the EIS.
If this were a project initiated by a state or a private party the Corps might indeed have been required to prepare the EIS. Our decisions in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 508 F.2d at 931-33, and Greene County Planning Board v. FPC, 455 F.2d 412, 419-20 (2d Cir.), cert. denied, 409 U.S. 849, 34 L. Ed. 2d 90, 93 S. Ct. 56 (1972), clearly hold that a federal agency cannot abdicate its responsibility independently to evaluate federal actions proposed to it by other, non-federal entities. See I-291 Why? Association v. Burns, 517 F.2d 1077 (2d Cir. 1975), sli op. at 3862. When two or more cooperating federal agencies are the only entities involved in a proposed project, however, the situation is quite different. Federal participation in the preparation of the EIS is assured. The only issue is which, as between federal agencies, should be treated as the "lead" agency responsible for its preparation. The Council on Environmental Quality ("CEQ") has issued Guidelines which allow for the designation of a "lead" agency to prepare the EIS on all aspects of a federal project involving more than one federal agency.*fn8 The agencies themselves are to designate the "lead" agency, taking into account
"the time sequence in which the agencies become involved, the magnitude of their respective involvement, and their relative expertise with respect to the project's environmental effects."
40 C.F.R. § 1500.7(b). The district court concluded on the basis of these guidelines that the Navy's preparation of the EIS was not improper. We agree.
Although the Corps, by recommending the New London dump site and implying that it would not issue a permit to the Navy unless that site was designated, became rather heavily involved in the project, other evidence demonstrates that the project nevertheless remains essentially a Navy one. The dredging is being done for the benefit of the Navy, at the Navy's expense, and to fulfill a governmental responsibility entrusted to the Navy. Furthermore, since the Navy conceived of the project, it was the first federal agency involved. Thus, while the Corps is a participant to the extent of issuing permits, the Navy is active in all aspects of the project. It, not the Corps, was responsible for drawing up and letting contracts for the work and seeing that the work was properly performed. All of these factors point to the Navy as the responsible agency. See Hanly v. Mitchell, 460 F.2d 640, 645 (2d Cir.), cert. denied, 409 U.S. 990, 93 S. Ct. 313, 34 L. Ed. 2d 256 (1972). Furthermore, only the Navy has continuing responsibility to see that the dredged channel remains at the proper depth and in good repair. See Upper Pecos Association v. Stans, 452 F.2d 1233, 1236 (10th Cir. 1971), remanded for ...