Beaufort-Jasper County Water Authority v. United States Army Corps of Engineers

No. 81-984-8 (D.S.C. May 10, 1984)

The court holds that the Army Corps of Engineers acted reasonably in deciding not to prepare an environmental impact statement (EIS) before issuing permits under Federal Water Pollution Control Act § 404 and Rivers and Harbors Act § 10 for the installation of intake and outfall pipes and a barge unloading and mooring facility for a proposed Milliken & Company chemical plant on the Savannah River. The court first enumerates 36 findings of fact, concluding with the finding that in making the determination that no EIS was required, the Corps adequately considered all relevant environmental facts. After establishing its standard of review, the court holds that, contrary to the Corps' position, the issuance of a permit by the Corps constitutes by itself a major federal action under the National Environmental Policy Act. However, the Coprs' decision, after preparing its environmental assessment, that the proposed work would not significantly affect the quality of the human environment was not arbitrary or capricious. The Corps adequately considered all environmental factors, and while there was conflicting expert testimony on many of them, the court holds that the Corps did not make a clear error in judgment in resolving those differences. The court further holds that the Corps considered all reasonable alternatives; since the project involved was private, the only reasonable alternatives were to issue the permit, issue the permit with conditions, and deny the permit. The Corps properly considered information from Milliken, since it independently verified it, and from other government agencies. Finally, the Corps' denial of a promised, but not otherwise required, opportunity for plaintiff to make last minute comments does not invalidate the Corps' decision.

Counsel for Plaintiffs
David Sive
Winer, Neuberger & Sive
425 Park Ave., New York NY 10022
(212) 421-2150

Joab M. Dowling
Dowling, Sanders, Dukes & Svalina
P.O. Drawer 1027, Beaufort SC 29902
(803) 524-4137

Counsel for Defendants
Heidi M. Solomon Ass't U.S. Attorney
10th Floor, Summerall Bldg., 19 Hagood Ave., Charleston SC 29403
(803) 724-4583

Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7361

[14 ELR 20732]

Blatt, J.:

Order

This matter is before the court upon defendants' motion for summary judgment. Plaintiffs instituted this action to declare unlawful and void a permit issued by Colonel Tilford C. Creel, District Engineer for the United States Army Corps of Engineers, Savannah District to Milliken & Company, Inc. Plaintiffs request that this court declare this permit invalid, and remand the application for the permit to the Corps with instructions for the Corps to prepare an Environmental Impact Statement (EIS).

In their complaint, plaintiffs allege that:

(1) The Corps violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 706, by not developing a full record for its decision;

(2) The Corps violated NEPA by not preparing an EIS;

(3) The Environmental Assessment prepared by the Corps does not adequately address anticipated environmental effects of the Milliken plant;

(4) The granting of the Milliken permit was arbitrary and capricious because the Corps did not consider all relevant factors;

(5) The Corps violated the policies set forth in NEPA, and;

(6) The Corps procedures in processing the Milliken permit did not comply with the APA, or due process.

By order dated February 9, 1984, the court ruled that no additional public hearing was required after the environmental assessment was available, and that no additional discovery was needed because the administrative record contained a sufficient explanation of the Corps' decision.

Based upon the pleadings, the administrative record, the briefs submitted by the parties, and the testimony and evidence introduced during several hearings, the court makes the following Findings of Fact and Conclusions of Law.

Findings of Fact

1. Plaintiff, the Beaufort-Jasper County Water Authority, is a duly constituted political subdivision of the Sovereign State of South Carolina responsible for providing potable water, for drinking and other purposes, to Beaufort and Jasper Counties, South Carolina, and to all of its residents, commercial and industrial users of water.

2. The City of Beaufort, South Carolina is a municipal corporation organized and existing under the laws of the State of South Carolina.

3. The Town of Port Royal, South Carolina was chartered on March 9, 1874, by the Secretary of State for the State of South Carolina.

4. The United States Army Corps of Engineers (the Corps) is the United States government agency, within the Department of the Army, in charge of the Army's Civil Works program. The Corps is the federal agency which administers the permit program of Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and Section 10 of the 1899 Rivers and Harbors Act, 33 U.S.C. § 403.

5. Colonel Tilford C. Creel was the District Engineer for the [14 ELR 20733] Corps for the Savannah District at the time this litigation was commenced.

6. Milliken & Company, Inc. (Milliken) is a corporation organized under the laws of the State of Delaware and having its principle place of business in Spartanburg, South Carolina. The business of Milliken includes the manufacture and sale of textiles and textile products and of the chemicals and other components used in the several phases of such manufacture.

7. The Savannah District of the United States Army Corps of Engineers was notified in January, 1979, that Milliken proposed to construct a chemical plant on the Savannah River when the Georgia Department of Industry and Trade inquired regarding the types of permits which might be required for such a facility. The Corps' response indicated that permitsfor work in the Savannah River would be required under both the Rivers and Harbors Act, 33 U.S.C. § 403, and the Clean Water Act, 33 U.S.C. § 1344.

8. Milliken accordingly submitted an application on February 11, 1980. This application included an application for Corps' permits under Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 and Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and for water quality certification from the State of Georgia pursuant to 33 U.S.C. § 1341.

The work and structure covered in the application were as follows:

a. A concrete walkway on concrete piling, extending 280 feet channelward from an existing road.

b. An unloading platform 19-feet wide and 70-feet long, consisting of three steel pile cells — (two of which were to be filled with 1,000 cubic yards of gravel). The center of the three pile cells was to house a lift pump, a rough bar rack, and a travelling water screen, with four unloading pipes 20 feet overhead on steel columns.

c. A 30-inch raw water intake pipe and a 24-inch effluent discharge — (outfall) — pipe mounted on the underside of the loading platform.

d. Two sheet mooring cells, each filled with 1,000 cubic yards of gravel, 200 feet upstream and downstream of the loading platform. The upstream cell is to be 25 feet in diameter and the downstream cell is to be 16 feet in diameter. Each cell would have a 12-inch concrete cap and a 12-inch mooring ring with a 12-inch concrete filled pipe for navigation lights.

e. Approximately 2,700 cubic yards of granular material would be dredged by clam-shell from the river and deposited behind adjacent revetments.

9. Colonel Tilford C. Creel, District Engineer of the Savannah District of the United States Army Corps of Engineers, ordered the preparation of a prelimionary environmental assessment in accordance with the Corps' regulation, 33 C.F.R. § 325.4(b)(1). This preliminary assessment concluded that the issuance of a permit for the work described above would not constitute a major federal action significantly affecting the quality of the human environment requiring the preparation of a detailed environmental impact statement (EIS) under Section 102(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C). In accordance with Corps regulations, 33 C.F.R. § 325,3, a joint public notice of the pending application was mailed to federal, state and local agencies, conservation groups and other interested persons on March 25, 1980, including copies to the Beaufort-Jasper County Water Authority, plaintiffs herein.This public notice included a statement that "preliminary review of this application indicates that an Environmental Impact Statement (EIS) will not be required."

10. On May 5, 1980, the Georgia Environmental Protection Division issued a weater quality certification for the project pursuant to 33 U.S.C. § 1341.

11. Upon receipt of several requests, the District Engineer, on August 15, 1980, issued a notice of a public hearing to be held in accordance with 33 C.F.R. § 327.

12. This notice provided in part that:

This notice is being distributed to all known interested parties, so that they, or their representatives, may have opportunity to be present and express their views on this application. This will assist the U.S. Army Corps of Engineers in developing facts on which to base a decision. The decision whether to issue a permit will be based on an evaluation of the probable impact of the proposed activity on the public interest, and will include application of the guidelines promulgated, and criteria established by the Administrator, Environmental Protection Agency (EPA), under authority of Section 404(b) of the Clean Water Act. The decision will reflect the National concern for both protection and use of important resources. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. We will consider all facts which may be relevant to the proposal; among those are conservation, economics, aesthetics, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, land use, navigation, recreation, water supply, water quality, energy needs, safety, food production, National defense, and in general, the needs and welfare of the people.

The activities in or adjacent to the Savannah River which require Department of the Army Permits include a barge unloading facility, a mooring facility, a raw water intake structure, and wastewater discharge piping. The actual discharge from the wastewater discharge pipe will be regulated by the Environmental Protection Division of the Georgia Department of Natural Resources pursuant to Section 402 of the Clean Water Act (33 U.S.C. § 1342). . . .

Preliminary review of this application by the Savannah District Corps of Engineers indicates that an Environmental Impact Statement will not be required.

13. During the public hearing, the Authority, by its legal counsel, stated its concern and serious questions about the propriety and reasonableness of permitting the Milliken complex on the Savannah River and submitted written statements to the Corps specifically requesting that an EIS be prepared.

14. A transcript of this public hearing was subsequently prepared, included in the administrative record, and was made available for public review.

15. Subsequent to the public hearing, and during the comment period, the Corps informed the Authority that the Corps' district engineer would provide plaintiff an opportunity for comment prior to any final decision.

16. No further meeting between the Corps and the Authority was held until the decision had already been made to issue the permit.

17. At or about the time of the public hearing, the Corps also received requests that an EIS be prepared from the following public agencies: The United States Department of the Interior; United States Fish and Wildlife Service; The National Oceanographic and Aeronautics Administration; The National Marine Fisheries Service; The Department of the Navy, Charleston, South Carolina; The Office of the Governor, State of South Carolina; The Beaufort, South Carolina, County Council; The Joint Planning Commission, Jasper County, South Carolina; He City Council, City of Beaufort, South Carolina; The Town of Port Royal, South Carolina; The Town of Hardeeville, South Carolina; and The Chamber of Commerce, Hardeeville, South Carolina.

18. The requests by the Fish and Wildlife Service and the Governor of the State of South Carolina were withdrawn.

19. During the processing of the Milliken application, the District Engineer, Colonel Creel, met with the Regional Administrator of the United States Environmental Protection Agency (EPA), and representatives of the Georgia Environmental Protection Division (EPD) on January 15, 1981. After consultation with the South Carolina Department of Health and Environmental Control, these agencies agreed to assist the Corps in the preparation of a more detailed environmental assessment for the proposed Milliken Plant. EPA's position, set forth in a letter to an attorney for the plaintiffs, was that "only after we have reviewed the information and analysis in a complete environmental assessment, will EPA be able to make a final recommendation to the Corps on whether a formal Environmental Impact Statement is needed."

20. On February 9, 1981, the Corps prepared and submitted draft copies of a revised and more detailed environmental assessment (EA) of the Milliken project to EPA. Copies of the environmental assessment were also furnished to Milliken, the South [14 ELR 20734] Carolina Bureau of Waste Water and Stream Quality Control, the Georgia Environmental Protection Division, the United States Fish and Wildlife Service and the National Marine Fisheries Service. This environmental assessment again concluded that only minor environmental effects were expected as a result of the Milliken plant and that the preparation of an EIS was unnecessary.

21. EPA requested additional information on the environmental effects of the Milliken plant and was furnished with this material on March 17, 1981. By letter dated April 16, 1981, the EPA regional Administrator gave its final comments, stating that she was pleased that the Environmental Assessment addressed the effects of the entire manufacturing facility as well as the waterfront and wetlands construction. She concluded that, on behalf of EPA, she concurred with the Corps of Engineers' decision that an environmental impact statement was not required for the project. Also in April, 1981, the Georgia Environmental Protection Division agreed that no EIS was necessary and that the Corps should "proceed expeditiously to complete action on the pending permit application."

22. On April 20, 1981, after a full consideration of all comments and information submitted to the Corps, a final environmental assessment was approved by the District Engineer. The District Engineer made "Findings of Facts" as required by Corps regulations. In addition to finding that the issuance of the permit did not constitute major federal action and would not significantly affect the quality of the human environment, he concluded that issuance of the Milliken permit was in the public interest:

I find that the decision to issue this permit is based on thorough analysis and evaluation of various practicable alternative courses of action for achieving the stated objectives; that wherever adverse effects are found to be involved, they cannot be avoided by following reasonable alternative courses or action which would achieve the specified purposes; that where the proposed action has adverse effect, this effect is either ameliorated or substawntially outweighed by other considerations of national policy; that the recommended action is consonant with national policy, statutes, and administrative procedures, and that, on balance, the total public interest would best be served by the issuance of the permit.

23. On April 21, 1981, the Corps approved Milliken's permit, subject to the following conditions:

a. That if, during construction of the project, anything of assumed archeological and/or historical significance is encountered, the permittee will stop work on the affected area and notify the District Engineer and the State Historic Preservation Officer so that a decision may be made as to the appropriate action to be taken. The permittee is responsible for maintaining inventory and safe custody of any artifacts that may be found during construction until such time as a determination is made as to their disposition.

b. That the permittee will not commence construction of the facilities authorized herein prior to ermittee's receipt from the Georgia Department of Natural Resources, Environmental Protection Division, of a National Pollutant Discharge Elimination System permit (NPDES permit) pursuant to Section 402 of the Clean Water Act (33 U.S.C. § 1342) for the discharge of effluent from the effluent outfall pipe referenced herein.

c. No dredging will be performed during the period of 15 March to 1 June without prior approval of the District Engineer.

24. In conjunction with its permit application, Milliken submitted numerous supporting documents and data, including: responses to particular concerns voiced by permit opponents; a Water Quality, Aquatic Toxicity and Endangered Species Assessment prepared by Professor Edwin L. Barnhart and Dr. Ruth Patrick; and Environmental Report prepared by the J.E. Sirrine Company; a copy of an EPA report regarding a sample analysis of effluents at Milliken's only operating chemical manufacturing facility at Inman, South Carolina; a copy of Milliken's NPDES Discharge Permit Application submitted to the Georgia Department of Natural Resources, Environmental Protection Division; and a Milliken document entitled "Summary of Environmental Effects of the Proposed Facility and Analysis in support of a Finding of No Significant Impact." The record indicates that the Corps conducted a detailed and thorough evaluation of the data submitted by Milliken and raised many issues about the accuracy and validity of this information. The Corps ultimately certified the accuracy of Milliken's data on the quantity and quality of anticipated effluent from the proposed project and independently concluded that the project would have no significant adverse environmental effects.

25. In addition to data provided by Milliken, the Corps received comments and information from numerous sources, including the Fish & Wildlife Service, EPA, National Marine Fisheries Service, the Georgia Department of Natural Resources, Environmental Protection Division, the South Carolina Department of Health & Environmental Control, local agencies, adjacent property owners, and other interested parties.

26. Plaintiffs had an ample opportunity to comment during the Corps' proceedings on the Milliken applications. The record is replete with evidence that plaintiffs were involved in the review process: they received notice of the public hearing, participated in the public hearing, submitting both oral and written comments, communicated their concerns to the Corps by letter and telephone, obtained copies of all information submitted by Milliken, and had access to the public records of the Corps.

27. The record details the Corps' careful consideration of water quality issues including the impact on ground and drinking water, and its attentive review of comments from interested persons and governmental agencies. The water quality analyses performed to determine the impact of the proposed wastewater discharge on the Savannah River were based on the maximum capacity of the wastewater discharge pipe to be constructed and, therefore, represent the ultimate possible discharge.

28. The record demonstrates that the Corps adequately addressed the existing air quality conditions as well as the air quality impacts of the construction and operation of the proposed facility, concluding that the project would not drastically affect air quality.

29. The Corps considered the impact of the project on the wetlands and concluded that it would not have a significant environmental impact. There is ample evidence that the structures across the wetlands would be restored after construction, and that the project may actually have a positive effect on the wetlands by reducing sedimentation and erosion.

30. The Corps carefully reviewed the possibility of a spill from barge transportation activities and concluded that the possibility of a threatening barge spill was remote and that its effects would be minimal.

31. The record illustrates that the Corps adequately considered and discussed the secondary impacts of the proposed manufacturing facility, including such factors as demography, cultural resources, economic and social indicators, local government services, satellite industrial growth, land use, transportation, water resources, recreation, energy use, wastewater treatment, and historical and archeological sites. The Corps concluded that the secondary impacts were minimal.¹

32. The Corps considered the problem of hazardous waste disposal, finding that little or no hazardous waste would be generated by the Milliken project, and that if any were produced, Milliken would be required to comply with state and federal regulations for hazardous waste generation, treatment, storage, transportation, and disposal.

33. The Corps thoroughly considered the impact of the Milliken complex on threatened and endangered species and found that there would be no adverse effects.

34. The record clearly demonstrates that the Corps carefully considered the effect the proposed action would have upon fish resources.

35. In conjunction with its assessment of the environmental impact of the Milliken project, the Corps considered the following alternatives to the project as proposed: construction of the plant without barge facility or pipelines, construction of plant without barge facility or roadway, placing the roadway on a causeway, [14 ELR 20735] placing the pipelines underground, or reducing the length of the basic facility. The Corps determined the modifying the plans in one of these ways would not be warranted because the project would only have negligible or minor adverse effects on the environment. The Corps also determined that denial of the permit would not be appropriate because the project would have no major environmental impact and would actually produce some beneficial effects.

36. In making the determination that no EIS was required, the Corps adequately considered all relevant environmental facts.

Conclusions of Law

1. This court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

2. The Corps' decision to issue a permit to Milliken without preparing an EIS is subject to judicial review.5 U.S.C. § 701.

3. The standard for judicial review of this administrative decision is determined by section 706 of the Administrative Procedure Act which provides that a reviewing court shall hold unlawful and set aside agency action if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or if the action failed to meet statutory, procedural, or constitutional requirements. 5 U.S.C. § 706(2)(A), (B), (C), and (D). Thus, the court must first consider whether the agency acted within the scope of its authority;² second, determine whether the agency action was arbitrary or capricious; and, finally, inquire whether the agency followed the necessary procedural requirements. Citizens of Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971).

4. In conducting this limited review, the focal point is on the administrative record already in existence and not some new record made initially in the reviewing court. Camp v. Pitts, 411 U.S. 138 (1973).When assessing the adequacy of a determination that no EIS is necessary, however, the reviewing court may consider matters outside of the administrative record to insure that the agency considered all relevant environmental effects and alternatives to the proposed project. Webb v. Gorsuch, 699 F.2d 157, 159 n.2 [13 ELR 20246] (4th Cir. 1983). In this case, the administrative record has been supplemented with records from the Environmental Protection Agency and briefs from the parties detailing the environmental factors which the Corps allegedly failed to consider adequately.

5. Pursuant to section 404 of the Clean Water Act, 33 U.S.C. § 1344, and section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, Milliken was required to obtain permits from the Corps to construct a barge loading facility, a water intake structure, an outfall structure, and perform associated dredging in the Savannah River.³ The Corps was acting within its statutory authority in granting the permit to Milliken.

6. The National Environmental Policy Act of 1969 (NEPA) mandates that federal agencies prepare a detailed EIS only when the project constitutes a major federal action and significantly affects the quality of the human environment. 42 U.S.C. § 4332(C). Here, the Corps concluded that major federal action was not involved because the only federal activity was the issuance of the permit for construction of a private facility. While there is some support for this position, e.g., Save the Bay,Inc. v. United States Corps of Engineers, 610 F.2d 322 [10 ELR 20185] (5th Cir. 1980), "major federal action" has been defined in the President's Council on Environmental Quality regulations to include "actions with effects that may be major and which are potentially subject to federal control and responsibility . . . Actions include . . . projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies . . . ." 40 C.F.R. § 1508.18. In light of this broad definition, this court concludes that the issuance of the Corps' permit constituted major federal action within the contemplation of NEPA. See Davis v. Morton, 469 F.2d 593 [2 ELR 20758] (10th Cir. 1972).

7. In processing Milliken's application for a permit, the Corps was required to prepare an environmental assessment (EA). 33 C.F.R. § 325.4(b). An EA is a "brief document which provides sufficient information on potential environmental effects of the proposed action and its alternatives, to the district engineer, to determine if an EIS is required . . ." 33 C.F.R. § 230.9. In this case, the district engineer concluded after assessment of the impacts of the project that the proposed work would not significantly affect the quality of the human environment, and, therefore, he need not prepare an EIS. This decision is at the heart of the present controversy, and the inquiry is whether this determination is arbitrary or capricious.

To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment . . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Volpe, supra.

8. In light of Finding of Fact Number 36 that the Corps adequately considered all relevant environmental factors, the court must determine whether the Corps made a clear error of judgment. There is substantial evidence in the record to support the Corps' conclusion that the Milliken project would not significantly affect the human environment. While there is conflicting expert opinion on many of these environmental factors, it is for the administrative agency and not the court to resolve the conflict. Webb v. Gorsuch, 699 F.2d 157 [13 ELR 20246] (4th Cir. 1983). It cannot be said that the Corps' decision that the Milliken project would not significantly affect the human environment was arbitrary or capricious.

9. Finally, the court must assess the agency's compliance with the duties essentially procedural in nature imposed by NEPA. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 [10 ELR 20533] (1st Cir. 1980). The Corps was under an obligation to consider reasonable alternatives to the proposed project. 33 C.F.R. § 230.5(e). National Center for Preservation Law v. Landrieu, 496 F. Supp. 716 [10 ELR 20820] (D.S.C.) aff'd, 635 F.2d 324 [11 ELR 20168] (4th Cir. 1980). Since the project involved was essentially private, the site selection,⁴ financing, design, construction and operation of the facility were all matters within the discretion of the applicant. Therefore, the only reasonable alternatives were to issue the permit, issue the permit with conditions, and deny the permit. Based upon Finding of Fact number 35, the court concludes that the Corps followed the requirement of 33 C.F.R. § 230.5(e) in giving due consideration to all reasonable alternatives.

10. Under 33 C.F.R Part 230, App. B, § 3. the Corps is permitted to require the applicant to furnish information, but it must "assure the conduct of an independent evaluation and shall be responsible for the accuracy of the information submitted by the applicant." "The intent of this regulation is that acceptable work not be redone, but that it be certified by the agency." Sierra Club v. Sigler, 695 F.2d 957 [13 ELR 20210] (5th Cir. 1983). Based upon Finding of Fact Number 24 that the Corps thoroughly evaluated the information received from Milliken, certified the accuracy of the data on the quantity and quality of anticipated effluent, and independently concluded that the project would have no significant adverse environmental effects, the Corps' conduct complied with the mandates of the regulations.

11. While the Corps is ultimately responsible for verifying the accuracy of the data relied upon to prepare the EA, it could reasonably rely on the findings of other agencies with special expertise in environmental matters which reviewed the permit applications. [14 ELR 20736] The Corps' regulations provide in pertinent part that: "[i]f comments [on the permit application] relate to matters within the special expertise of another Federal agency, the District Engineer may seek the advice of that agency." 33 C.F.R. § 325.2(a)(3). See also 33 C.F.R. § 230, App. (B)(8)(c). Therefore, the Corps properly considered the comments and evaluations of the Fish and Wildlife Service, the National Marine Fisheries Service, the EPA, the Georgia Environmental Protection Division and the South Carolina Department of Health and Environmental Control, state agencies authorized by the EPA to administer permit programs. See Finding of Fact Number 25.

12. All federal agencies have a responsibility to "make diligent efforts to involve the public in preparing and implementing their NEPA procedures." 42 C.F.R. § 1506.6. The Corps' regulations outline the procedures the district engineer is to follow in making available to the public environmental documents relating to permits. See 33 C.F.R. Part 325. The district engineer may, if resources are available, go beyond the requirements of 33 C.F.R. Part 325, and inform the public of various other environmental and decision processes that have occurred. 33 C.F.R Part 230, App. B § 5. In the present case, the Authority was led to believe that it would have an additional opportunity to comment after all evidence was received. There is nothing in the regulations or the case law, however, to suggest that non-applicants should be afforded this additional opportunity to provide input into the decision-making process. The Authority was afforded numerous opportunities to comment, both in writing and orally, on the Milliken application. See Finding of Fact Number 26. While it is indeed unfortunate that the Authority was led to believe that it would have a last minute opportunity to comment, the Corps' conduct is not sufficient to taint the fundamental fairness of the decision or violate the Authority's due process rights.

For the foregoing reasons, defendants' motion for summary judgment is granted.

AND IT IS SO ORDERED.

1. The Coprs did, however, place a special condition on the permit regarding archeological and historical objects. See Finding of Fact Number 23.

2. Plaintiff does not contend that the Corps' action was beyond the scope of its authority.

3. The Corps does not have the authority to regulate discharges of effluent into the river. Section 511(c)(2) of the Clean Water Act, 33 U.S.C. § 1371(c)(2) provides that nothing in the National Environmental Policy Act of 1969 shall be deemed to:

(A) authorize any Federal agency authorized to permit the conduct of any activity which may result in the discharge of a pollutant into the navigable waters to review any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under section 1341 of this title; or

(B) authorize any such agency to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this chapter.

The responsibility for regulating effluent discharge is vested with the states pursuant to 33 U.S.C. § 1342.

4. The record reveals that Milliken considered other site locations.