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BRITT v. UNITED STATES ARMY CORPS OF ENGRS.

April 12, 1985

DORIS J. BRITT, ROBERT F. and MARJORIE L. GASCON, CARL E. and THELMA V. SCHENK, RYAL and ALICE DeVOST, GILBERT KNAPP, NAN MOODY, MEDICAB OF ROCHESTER, INC., VIC & IRV'S REFRESHMENT, INC., and ALBERTA ENTERPRISES, INC., d/b/a BILL GRAY'S FAMILY RESTAURANT, Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, JOHN O. MARSH, SECRETARY OF THE ARMY, LT. GEN. E. R. HEIBERG, III, CHIEF OF ENGINEERS, UNITED STATES ARMY CORPS OF ENGINEERS, and UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: TELESCA

DECISION AND ORDER

INTRODUCTION

 Plaintiffs in this case have challenged on various grounds the United States Army Corps of Engineers project to open Irondequoit Bay by the construction of jetties into Lake Ontario, the enlargement of the channel from the Bay into the Lake, and the (at least temporary) removal of the bridge which presently spans the channel. Pending before me is plaintiffs' motion for a preliminary injunction on the grounds that (1) the project does not comply with Public Law 85-500, the Congressional enabling legislation for the project, and (2) the Environmental Impact Statement (EIS) for the project inadequately discusses the traffic and other impacts of severing the existing bridge. For the reasons set forth below, plaintiffs' motion for preliminary injunction is granted.

 FACTS

 By Public Law 85-500, known as the "River and Harbor Act of 1958", enacted on July 3, 1958, Congress authorized the enlargement of the existing channel connecting Irondequoit Bay to Lake Ontario by the U.S. Army Corps of Engineers. The project was to be completed in accordance with the plans and subject to the conditions recommended by the Chief of Engineers in House Document (HD) 332, para. 74, which contained the following recommendation:

 That the [project] be subject to the condition that responsible local agencies give assurances satisfactory to the Secretary of the Army that without cost to the United States they will

 * * *

 (f) Replace and relocate the existing highway bridge with a new structure providing a vertical clearance of 40 feet above low-water datum in a location consistent with the recommended plan of improvement, in accordance with plans approved by the Chief of Engineers.

 As noted in paragraph 72 of HD 332, the project as authorized was to be constructed "in general accordance with plan A shown on the map accompanying this report with such modifications as in the opinion of the Chief of Engineers may be desirable". Plan A itself indicates that the bridge was to be constructed by "local interests", not by the Corps of Engineers, at a site different from the current location of the channel.

 In 1960, the New York State Department of Public Works was looking at the feasibility of a high-level bridge across the middle of Irondequoit Bay for New York State Route 104. On June 7, 1960, Henry Ten Hagen, Chief Engineer for the Department of Public Works, wrote to Col. Earle B. Butler, then District Engineer of the U.S. Army Engineer District in Buffalo, New York, proposing to construct such a bridge "and to abandon present Route 18 along the shore of Lake Ontario as a State highway route in accordance with the proposal previously submitted to you". This proposal apparently found its way to the Chief of Engineers for the Corps in Washington, and on February 1, 1962, the Chief of Engineers notified the North Central Division Engineer in Chicago that "the proposed deviations from the project document plan [were] satisfactory. . . ."

 In March, 1976, the Corps held a public hearing on the project, and subsequently created the Irondequoit Bay Opening Policy Committee to represent State and local interests concerned with the project. In December, 1979, the Corps published its Draft Phase I General Design Memorandum and Draft Environmental Impact Statement (DEIS), and circulated it for public review and comment. In July, 1980, the Corps conducted a hearing under Section 404 of the Clean Water Act, 33 U.S.C. Section 1344. In October, 1980, the Corps published its Phase I General Design Memorandum and Environmental Impact Statement: Final (FEIS).

 On June 5, 1981, Brigadier General Scott B. Smith, North Central Division Engineer, issued a "record of decision" which recommended the construction of the project using the current location of the channel between the Lake and the Bay, with a movable bridge to be constructed by "local interests" such as New York State. In April, 1982, the Corps issued a Phase II General Design Memorandum (GDM) addressing the final design of the project. On April 14, 1983 a "Local Cooperation Agreement" was signed by the United States of America and Commissioner Orin Lehman of the New York State Office of Parks, Recreation and Historic Preservation on behalf of New York State, in which New York State agreed to construct and maintain any replacement highway bridge across the channel.

 The Corps awarded a contract to Luedtke Engineering Company on June 6, 1984 for the construction of a small boat harbor at Irondequoit Bay. Of the contract price of $3,260,000, $1,060,462 has already been paid to the contractor. Although the bridge has not been removed, work under the contract is approximately 35% complete, and is scheduled to be totally completed by September 16, 1985.

 On October 11, 1984, plaintiffs filed a 22-count complaint in this action, alleging violations of Public Law 85-500, the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4321 et seq., and other laws protecting the environment, historic sites, and endangered species. On March 28, 1985, plaintiffs filed the instant motion for a preliminary injunction, based solely upon their arguments that the project did not comply with Public Law 85-500 and the EIS did not take a "hard look" at the effects of severing the Route 18 bridge. Defendants have opposed the motion, arguing that (1) the Corps, as authorized by PL 85-500 has modified the project to allow the severance of the bridge, (2) plaintiffs are ...


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