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4 ELR 20251 | Environmental Law Reporter | copyright © 1974 | All rights reserved Florida Audubon Society v. CallawayNo. 73-824-Civ-J-S (M.D. Fla. January 29, 1974)The Corps of Engineers' environmental impact statement on a dredge and fill project for 275 acres of marshland on a manmade island in the St. Johns River complies with the requirements of NEPA under the reasonableness standard. The island, which is zoned for industrial uses, has been designated as the site for a port to manufacture floating nuclear power plants for use on the east and gulf coasts. The cost/benefit analysis in the EIS adequately considered the project's environmental effects, and found them to be outweighed by the expected benefits, such as increased employment opportunities for Jacksonville's unemployed and underemployed. The court points out that the marshland affected represents less than one percent of the total marshland in northern Florida, and notes a commitment by the manufacturer to purchase 1,050 acres of marshland elsewhere and commit it by restrictive covenant to the public. The impact statement also adequately developed alternative site selection data, and did not lack objectivity merely because the data was prepared by parties with a financial interest in the project or their agents. The court finds that issuance of the permit need not be withheld pending final AEC approval of the manufacturing license, since delay would be extremely costly and perhaps fatal to the project, and it cannot be assumed that the AEC's objectivity will be affected by issuance of the permit. Counsel for Plaintiff David Gluckman Counsel for Defendants Counsel for Defendant-Intervenor Offshore Power Systems, Inc. Vincent W. Campbell Counsel for Defendant-Intervenor Jacksonville Urban League, Inc. John M. Ferren Counsel for Defendant-Intervenor Jacksonville Port Authority Counsel for Defendant-Intervenors National Association for the Advancement of Colored People, The Youth Congress, The Black Community Coalition, The Afro Cultural Development Center, and Greater Jacksonville Economic Opportunity, Inc. David H. Tatel Scott, J. FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on for trial on a stipulated record, and the Court having considered the voluminous documentary evidence, testimony adduced at the hearing on the application for preliminary injunction, and oral argument of counsel, makes the following 1. Plaintiff Florida Audubon Society is a non-profit corporation organized under the laws of the State of Florida whose purpose to further the conservation of wildlife and the environment. Defendant Corps of Engineers is a branch of the United States Army, 10 U.S.C. § 3063, charged by statute with the accomplishment of certair civil functions of the Department of the Army. Among these is the issuance of dredge and fill permits in navigable waters of the United States pursuant to 33 U.S.C. § 403. Defendant Howard Callaway is Secretary of the Army. William C. Gribble has replaced Frederick B. Clarke, as Chief of Engineers, Corps of Engineers of the United States Army, as a defendant in this case. 2. Defendant-Intervenor Offshore Power Systems, Inc. (OPS) is a joint venture of Westinghouse Electric Corporation and a subsidiary of Tenneco, Inc., organized in 1972 for the purpose of developing and producing floating nuclear plants (FNPs) to produce electricity. Defendant-Intervenor Jacksonville Port Authority (JPA) is a body politic and corporate created in 1963 by Chapter 63-1443, Laws of Florida, Special Acts of 1967, as amended, with specific powers and a mandate to develop Blount Island for port industrial usage. JPA is the owner of Blount Island, a small manmade island created in the early 1950s and located in the main river channel of the St. Johns River, approximately ten (10) miles from its juncture with the Atlantic Ocean. 3. On September 4, 1973, plaintiff filed suit in the United [4 ELR 20252] States District Court for the District of Columbia seeking injunctive and declaratory relief to prevent the defendants from issuing a dredge and fill permit to JPA. The permit would authorize JPA to dredge and fill certain areas on and around Blount Island. Plaintiff alleged that the defendants have violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251, et seq., the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-665, the Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451, et seq., and the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. 4. At a hearing on September 4, 1973, plaintiff moved for a temporary restraining order (TRO). It also filed on that date a motion for summary judgment and/or a preliminary injunction. A TRO was issued on September 4, 1973, directing the Corps to suspend and conditionally revoke the permit it had issued to JPA on that same day. 5. On September 12, 1973, OPS moved to intervene as a defendant on the ground that (a) JPA was to convey a portion of Blount Island to OPS for implementation of the permit; and (b) OPS would conduct the dredge and fill activities and implement the Blount Island FNP project.The motion of OPS was granted. 6. On October 9, 1973, the Corps moved for a transfer of venue to the Middle District of Florida and six Jacksonville minority organizations moved to intervene as defendants. The motions were granted, the Court noting the "continuing vitality" of McKenna v. Udall, 418 F.2d 1171 (D.C. Cir. 1969), with respect to the "indispensability" of JPA under Federal Rule 19(b). 7. Pursuant to notice issued September 14, 1973, the Corps conducted a public hearing on October 15, 1973, in Jacksonville, Florida, to determine whether it would reissue, modify or revoke JPA's permit. On November 30, 1973, Lieutenant General William C. Gribble, Chief of Engineers, ruled that the permit should be reissued to JPA. 8. On October 26, 1973, JPA moved in the Court to intervene as a defendant. Its motion was granted. On December 5, 1973, the federal defendants and OPS filed cross-motions for summary judgment. OPS also filed a motion for an increase in the amount of security provided by plaintiff. Answers to plaintiff's complaint were filed by all defendant parties. 9. On December 6, 1973, plaintiff served an amendment to its complaint asserting as a sixth claim for relief that OPS should not be permitted to dredge and fill because it could not make a "binding commitment" that it would manufacture FNPs since it had not received a manufacturing license from the Atomic Energy Commission (AEC). On December 11, 1973, plaintiff moved for partial summary judgment on the sixth claim for relief. 10. On December 14, 1973, OPS filed a contingent amended answer to plaintiff's amended complaint, and a cross-motion for partial summary judgment with respect to the plaintiff's sixth claim for relief. 11. On December 17 and 18, 1973, this Court entertained oral argument on plaintiff's motions for summary judgment, partial summary judgment and/or a preliminary injunction, the defendants' motions for summary judgment, OPS' cross-motion for partial summary judgment and OPS' motion for an increase in security, and considered the defendants' opposition papers to the plaintiff's motions. At the hearing plaintiff withdrew its claim for relief under (1) the Federal Water Pollution Control Act (plaintiff's second claim); (2) the Fish and Wildlife Coordination Act (plaintiff's third claim); and (3) the Coastal Zone Management Act of 1972 (plaintiff's fourth claim). Plaintiff's fifth claim for relief under 33 U.S.C. § 1344 (a section of the Federal Water Pollution Control Act) is moot since the Corps has held the hearing required by that section. Plaintiff also conceded that it had no standing to assert a claim under the Rivers and Harbors Act of 1899. 12. On December 19, 1973, this Court filed an order (a) denying all motions for summary judgment and partial summary judgment; (b) denying plaintiff's application for a preliminary injunction and dissolving, setting aside and vacating the TRO; (c) granting plaintiff's motion for leave to file an amendment to the complaint and OPS's motion for leave to file a contingent amended answer to the amended complaint; (d) denying OPS' motion to increase security on the ground of mootness; (e) and setting the case for trial on the merits beginning January 21, 1974. 13. On January 18, 1974, plaintiff and all defendants filed with the Court a joint stipulation representing that the case would be submitted on the basis of the evidentiary record presented to the Court prior to and during the December 17 and 18, 1973, hearing. The Court finds the following facts based on the evidentiary record: 14. OPS is owned in equal shares by Westinghouse, the nation's largest producer of nuclear power plants, and a Tenneco subsidiary - Tenneco Power Systems, Inc. Tenneco is the parent company of Newport News Shipbuilding and Drydock Company, one of the nation's largest shipbuilders. OPS was created to plan and construct FNPs. It is prepared to develop a site on Blount Island for the construction of a shipyard-like manufacturing plant to build FNPs. The Blount Island Development Project, as proposed, is a single unified project involving three development stages: (1) the dredging and filling of Blount Island wetlands; (2) the construction of a manufacturing plaint to be utilized for the production of floating nuclear power plants (FNPs); (3) the production of FNPs if approved and licensed by the Atomic Energy Commission (AEC). This development must begin immediately to permit OPS to deliver in 1979 and 1980 its first two FNPs to its utility customers. Failure to proceed now with the dredge and fill would cost OPS approximately $5,000,000.00 per month in added costs and would jeopardize the FNP project. 15. Since mid-1971 JPA has supported the OPS plan and has reserved a site on the eastern half of Blount Island for the OPS development. During this period a number of other parties interested in developing Blount Island have been turned away in view of JPA's commitment to OPS. On June 14, 1973, JPA and OPS executed an "Agreement in Respect of Property and Its Development" in which JPA granted OPS an option to purchase a portion of Blount Island for approximately $2,000,000.00. The agreement also states that the site will be reconveyed to JPA if the property is not used by OPS for the construction of a manufacturing facility to produce FNPs. Article 9 of the agreement contains OPS' commitment to so utilize the Blount Island site. This commitment satisfied a condition contained in the certificate of the Florida State Water Pollution Control Board and the dredge and fill permit issued by the Florida State Trustees of the Internal Improvement Trust Fund that OPS make such a commitment to JPA. The Blount Island FNP project will affect approximately 275 acres of marshland on the island and 250 acres of Back River, a small tidal lagoon surrounded by Blount Island. The affected area is less than 1% of the marshland acreage in the northeast Florida area. A survey conducted by the Battelle Institute, an independent research firm, concluded that the loss of Back River and the other marshland affected by the project will not significantly affect the biological health of the St. Johns River. Studies and plans of the pertinent state and local authorities show that the remaining marshland acreage in the area of Blount Island will be preserved as marshland at least through 1990. Further, OPS has made a commitment to the Interior Department that it would mitigate the loss of the wetlands affected by the Blount Island project by purchasing 1,050 acres of marshland and committing it by restrictive covenant to the public. In view of this commitment, the Department of Interior, the agency most directly concerned with the preservation of wetlands, supports the Blount Island FNP project. 16. Blount Island is a manmade island created in 1950. It is zoned for industrial development. In 1963 the state legislature created the JPA with the specific power and mandate to carry forward the industrial development of Blount Island. Title to Blount Island was vested in the JPA at that time. Between 1966 and early 1972 the JPA expended $14,000,000.00 of publicly-raised money on the development of Blount Island. Independent studies prepared in 1959 and 1972 for JPA conclude that the filling of Back River is a prerequisite to further industrial development of the island. Biological studies recently prepared for use by the Corps in the preparation of its environmental impact statement conclude that the loss of Back River and the additional marshland that would be affected by the Blount Island project would not have a significant effect on the [4 ELR 20253] sea and animal life in the area 17. To manufacture FNPs, OPS must obtain a manufacturing license from the AEC. Also, prior to installation of a plant at an offshore location, the public utility which purchases the FNP must obtain a construction permit and, prior to operating the plant, an operating license. 18. On May 1, 1972, OPS filed with the AEC a report on the preliminary design and safety features of the FNP.Preliminary responses from the Commission were favorable. Indeed, the AEC supports standardized plants as exemplified by the OPS proposal, and has stated that the OPS concept appeared technically feasible. 19. On January 23, 1973, OPS filed an application with the AEC for a license to manufacture eight FNPs. The Commission's license review will not be completed until early 1975. During the course of the review the Commission will prepare extensive safety reports and two environmental impact statements (EISs). One EIS will cover the environmental impact of operation of the OPS manufacturing facility on Blount Island. The other will cover the environmental impact of siting the FNP along the Atlantic seaboard and Gulf coast. The FNP EIS will consider the full spectrum of environmental considerations of towing, installing and operating floating nuclear power plants in four typical offshore areas. 20. Prior to selection of Blount Island as the site for its FNP facility, OPS conducted a far-ranging site selection survey which included some 62 sites along the Atlantic and Gulf coasts. Only east and gulf coast locations were examined because it was important that the NPS manufacturing complex be close to the delivery sites for FNPs. The site to be selected had to satisfy certain requirements such as a harbor, waterfront area, adequate channel characteristics, protection from the sea, good weather for outdoor fabrication and a suitable labor supply. After extensive study, which included a study of the environmental impact of dredging at the sites, OPS narrowed its search to 17 cities which were further studied. Of the 17, Jacksonville, Florida, and Portsmouth, Virginia, were selected as those which best fitted the site requirements. Blount Island was selected as the first choice primarily because Jacksonville could more easily supply the necessary labor to operate the FNP plant. The Corps reviewed OPS' alternative site studies and explicitly noted that the studies were a "reasonable evaluation" of alternative sites and Blount Island was a proper site. 21. After choosing Jackson ville, the Corps was requested by the Council on Environmental Quality (CEQ) to in vestigate certain surplus naval facilities (primarily the Boston Naval Yard) and private shipyards which had become available subsequent to OPS' original site survey. The Boston facility was studied and rejected principally on the ground that Boston weather was not conducive to outside fabrication of component parts. Possible alternative sites along the St. Johns River were also investigated. However, it was found that the Blount Island site would result in less environmental disturbance that any other possible site along the St. Johns River. 22. The economic benefits which the Jacksonville area will realize as a result of the FNP project are significant, particularly with respect to the new jobs in construction and manufacturing to be created by the project. When the OPS facility is operating at full capacity it will employ 10,000 to 12,000 people, 90% of whom will be drawn from the Jacksonville area, and at least 23% of whom will come from minority groups. The McFarland Report referenced in the Corps' EIS estimates that over the next decade Duval County will realize an economic impact of $1,600,000,000.00 if the OPS facility is built. Other testimony given at public hearings by labor officials, civil planners, school officials, governmental authorities and transportation planners corroborated the McFarland findings. As the testimony at all the public hearings uniformly indicates, economic and social costs resulting from the facility will be minimal. A survey carried out by the Florida State Education Department on high school facilities in October 1973 indicated that the Jacksonville high schools are not filled to capacity. Therefore, any new high school age students who come to Jacksonville as a result of the facility will be easily accommodated. The Duval County school system also has the capability, without adjusting any current growth plans, to provide for the education of elementary age children of new families who would be brought to Jacksonville by the OPS project. Therefore, the school system will not be burdened by the project. Since most of the new jobs created by OPS will be filled by unemployed and underemployed living in the Jacksonville area, only a small population increase is expected as a result of the facility.Therefore, economic costs to the community resulting from the OPS facility will be minimal. 23. Local and state support for the OPS FNP project has been overwhelming. On May 4, 1972, following a public hearing, the Jacksonville City Council voted unanimously to approve JPA's application for a local dredge and fill permit. On May 22 and 23, 1972, following public hearings, the State Pollution Control Board and the Trustees of the Internal Improvement Trust Fund, respectively, granted their official approval to the project. 24.On April 26, 1972, JPA applied to the Corps of Engineers, Jacksonville District, for a dredge and fill permit pursuant to Section 10 of the Rivers and Harbors Act of 1899. Prior to acting on the permit request, the Jacksonville District Engineer of the Corps issued a Public Notice of JPA's application for the permit on August 1, 1972, stating that a draft EIS would be prepared. The Corps conducted a biological study of the Blount Island area which might be affected by the dredge and fill activities and also studied reports and surveys dealing with the economic impact of the facility on Jacksonville. The Corps also had the benefit of testimony submitted by engineers, civil planners, school and urban transportation experts and labor and minority group leaders at the hearings noted in paragraph 23 of these findings. In October 1972 the District Engineer circulated the draft impact statement to all parties which might have an interest in the project, including plaintiff, and to all pertinent agencies, as required by NEPA. The draft document was 78 pages long and was affixed with approximately 400 pages of appendices. The Corps received 48 pages of comments, which it answered in full as part of its final impact statement. The proposed final statement was completed in February 1973 and was revised in June 1973. On August 10, 1973, a final EIS was filed by the Corps with the Council on Environmental Quality. 25.As noted in the pre-trial stipulation filed with this Court on January 18, 1974, the Corps 'prepared' the Blount Island EIS pursuant to its obligations under NEPA. The EIS was drafted, reviewed and finalized by Corps personnel. The final document is 94 pages in length and 'sets forth' the Corps 'analysis' of data, contained in the administrative record, acquired from both external sources and internal Corps studies and investigations. The document was prepared by the Corps on the basis of independent studies done by Corps personnel, internally generated memoranda and studies done by Corps personnel, internally generated memoranda and studies and documents supplied by other parties, both interested and not interested. These included such studies as the McFarland Report, prepared for JPA, the Battelle biological and land use studies, prepared for JPA, the Goat Island Study, prepared by consultants to the Duval County Port and Industrial Authority, alternative site studies, prepared by OPS, independent biolgical and alternative site studies done by Corps personnel, and testimony delivered by interested persons (including members of plaintiff's organization), at four separate hearings. This baseline data was issued by the Corps in preparing the EIS. The document itself, however, was drafted and compiled by the Corps. 26. On September 4, 1973, the dredge and fill permit application of JPA was approved. However, that same day, under Court order, the effectiveness of the permit was suspended. On September 4, 1973, the Corps issued a public notice stating that it would hold a hearing on October 15, 1973, in Jacksonville to receive evidence from all interested parties. Thereafter it would determine whether to reissue, modify or revoke the permit. At the hearing wide public support once again was voiced for the FNP project.The record was left open until October 30, 1973, to receive further comments of all interested parties. After four weeks of deliberation, Lieutenant General William C. Gribble, Chief of Engineers, ruled that the permit should be issued. General Gribble stated that he would authorize reissuance of the permit when permitted to do so by the Court. He submitted a five-page memorandum explaining his decision, the report of hearing officer Colonel Drake Wilson accompanied by the endorsement of the Division Engineer, South [4 ELR 20254] Atlantic Division, and the administrative record. 27. On December 19, 1973, the Court lifted the restraining order and on December 20, 1973, the Corps reissued the permit to the JPA. 1. This Court has jurisdiction over the subject matter of plaintiff's first claim for relief under 28 U.S.C. § 1331(a); 28 U.S.C. § 1337; 28 U.S.C. § 1361; 28 U.S.C. §§ 2201 and 2202; and NEPA; Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973); Hiram Clark Civil Club v. Lynn, 476 F.2d 421 (5th Cir. 1973); National Helium Corporation v. Morton, __ F.2d __, 4 ELR 20041 (10th Cir. 1973). 2. This Court has jurisdiction over the subject matter of the plaintiff's sixth claim for relief under 28 U.S.C. § 1331(a); 28 U.S.C. § 1337 and 33 U.S.C. § 1341(a)(1). Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). 3. The plaintiff alleges four particulars in which the EIS filed by the Corps is deficient, under Section 102 of NEPA. First, plaintiff claims that the document provides inaccurate, nonobjective and incomplete information with respect to the impact of the project upon fish and wildlife, the social, cultural, economic and demographic conditions of the area and the ecosystems and subsystems to be affected by the project. However, it is axiomatic that no environmental impact statement is perfect, nor can it be thoroughly exhaustive of all possible areas of research and study if it is to be prepared in a reasonable length of time. This Court agrees with the Tenth Circuit that, where the sufficiency of the statement is being tested, the "rule of reason" is the Court's guilding standard. As noted by the Court in National Helium Corporation v. Morton, 4 ELR 20041 (10th Cir. 1973): The environmental impact statement should be placed in perspective. The relevant provisions bring environmental factors into the agency decision-making, placing them on an equal footing with economic, technical and other considerations. Also, this environmental impact statement serves as source material for the head of the agency, the Congress, for the President and the public. See Calvert Cliffs' supra. If the agency had failed altogether to follow out the procedure required by NEPA, the arbitrary and capricious standard might well apply. That is not our present problem. The rule of reason is a more appropriate standard where the sufficiency of the statement is being tested. Id. at 20043 (emphasis added) Under this standard the Corps' 94-page final EIS, with approximately 400 pages of technical appendices clearly contains sufficient information about the environmental impact of the proposed project to satisfy the requirements of NEPA. 4. Second, plaintiff argues that the document lacks objectivity because the Corps of Engineers relied on data prepared by interested parties or their privies rather than conducting an independent investigation of the environmental impact of the project. The specific data referred to is data submitted by OPS concerning its study of alternative sites to the Blount Island site. Though the Corps did receive OPS data concerning alternative sites, it independently examined the data and reached its own conclusion that Blount Island appeared to be a proper site from an environmental standpoint. Colonel Drake Wilson, hearing examiner, concluded that the applicant had made an ample "study of alternative sites" and that the Blount Island site was the one which "minimiz[ed]" environmental degradation. Lieutenant General Gribble, Chief of Engineers, noted that "sufficient data concerning the availability of alternative sites for this proposed activity has been furnished for review and inclusion in the record, and that there has been a full consideration of all relevant alternatives . . ." The law is clear that the agency preparing the impact statement is permitted to accept data from interested parties so long as the analysis of the issues is prepared by the agency. See Life of the Land v. Brinegar, 3 ELR 20811, 20814 (9th Cir. 1973); CEC v. Volpe, 4 ELR 20009 (10th Cir. 1973); Greene County Planning v. Federal Power Commission, 455 F.2d 412 (2d Cir. 1972), cert. denied, 409 U.S. 849 (1972); Finish Allatoona's Interstate Right v. Volpe, 355 F. Supp. 933 (N.D. Ga. 1973), Aff'd, 484 F.2d 638 (5th Cir. 1973); Citizens Environmental Council v. Volpe, 3 ELR 20077 (D. Kan. 1972), aff'd 484 F.2d 870 (10th Cir. 1973); National Forest Preservation Group v. Volpe, 352 F. Supp. 123 (D. Mont. 1972); Movement Against Destruction v. Volpe, 361 F. Supp. 1360 (D. Md. 1973). 5. Third, plaintiff argues that the EIS is deficient because it fails to develop in detail alternative site selection data. However, 62 possible locations on the east and gulf coasts were considered by OPS prior to selecting Blount Island, and there were no further significant sites not covered by OPS which the Corps could have covered. As Colonel Wilson notes: The applicant has made an ample study of alternative sites. The evidence is abundant that the applicant has apent significant effort, involving both time and money, in narrowing down the alternative sites to the selected and proposed Jacksonville location. I am convinced, and so find, that the proposed site is both a proper and reasonable one, based upon appropriate criteria. I so conclude upon the basis that the proposal for the Jacksonville area embraces a reasonable evaluation of alternative sites, fairly appraises economic considerations, and minimizes environmental degradation. 6.Plaintiff claims that the EIS lacks completeness because the Corps failed to consider full economic and social costs. However, a fair reading of the EIS reveals that the benefits and costs of the project have been adequately discussed and that benefits clearly outweigh costs. 7. The crux of plaintiff's final argument is that the Corps violated the law by granting JPA a dredge and fill permit without waiting for the AEC to finish its review of OPS' application for a license to manufacture FNPs. Essentially this is a substantive attack on the Corps' decision to go forward prior to the AEC finishing its manufacturing license review. That plaintiff's attack is a substantive attack on the Corps' decision is reflected in the decision of Lieutenant General Gribble. In rejecting plaintiff's argument that the Corps had a substantive duty to wait for the AEC to act on the license application, Lieutenant General Gribble noted: While the AEC has found the floating nuclear power plant program to be a feasible concept (see AEC letter of 20 October 1972 to A. P. Zechella, President of Offshore Power Systems, included in Tab 7 to the hearing officer's report) extensive review has yet to be undertaken. Nevertheless, I find that there is clearly a demonstrated desire on the part of the vast majority of citizens of the Jacksonville area that the facility be constructed at the site indicated, and that subsequent economic benefits will result to the Jacksonville area from this project. The opposition to the project is directed primarily at the losses which will occur from the filling of approximately 275 acres of tidal marsh land. These losses are acknowledged but are believed to be acceptable when the overall public interest is considered. In this connection I must take into account the recent message of the President concerning the 'energy crisis' and his expressed desire that measures be taken to expedite the construction of nuclear power plants as a primary means of ameliorating the current shortage of electrical energy. I also note that the record indicates that in the event the AEC approval is not given to the operation of the manufacturing facility, that nonetheless the work authorized will not be wasted since the area in question has previously been designated by the City of Jacksonville as an industrial park and that some benefits would certainly result from the utilization of the site even though it might be used for alternative purposes. I therefore conclude based upon the foregoing factors and recognizing that many contingencies remain which could affect the ultimate attainment of the benefits to flow from this action, that it is in the overall public interest, after consideration of all relevant factors, including fish and wildlife, economics and other environmental concerns, that the permit to dredge and fill and construct bulkheads at Blount Island, St. Johns River, be promptly reissued to the Jacksonville Port Authority. Pages 4-5 This Court's role in reviewing the Corps' decision to grant the permit [4 ELR 20255] is extremely limited. As noted by Judge Morgan writing for this Circuit: A reviewing court is limited in its review of an agency decision, however.Its function is not to determine the correctness, in some ultimate sense, of an agency's actions. A reviewing court is limited to determining only the legality of the challenged action. If an agency acts within the scope of its authority, and if that authority is consistent with the Constitution, then a court may not overturn the agency's decision. St. Joseph Stock Yards Company v. United States, 298 U.S. 38, 51 (1936). DiVosta v. Lee, 4 ELR 20005 (5th Cir. 1973). In this circuit the proper test to be applied to Corps' decision under the Rivers and Harbors Act of 1899 is the "arbitrary and capricious test." DiVosta v. Lee, supra; see Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir. 1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973); Gables by the Sea v. Lee, __ F. Supp. __, (S.D. Fla. 1973). In view of the voluminous evidence presented by the Corps to justify its decision, it cannot be said that the decision was "arbitrary or capricious." The AEC's license review will not be completed until 1975 and the Corps had adequate information on which to base a determination that the permit should be approved at a time that would permit implementation of the multi-phased Blount Island project. See Power Reactor Development Co. v. International Union of Electrical Radio and Machine Workers, 367 U.S. 396 (1961); Indian Lookout Alliance v. Volpe, 3 ELR 20739 (8th Cir. 1973); Scientists Institute for Public Information v. AEC, 481 F.2d 1079 (D.C. Cir. 1973); Scientists Institute for Public Information v. AEC, No. 1029-71 (D.D.C. 1973), appeal dismissed by order dated July 20, 1973. For the Corps to have delayed further the decision on the dredge and fill permit would have jeopardizedthe Blount Island project and mooted by AEC license review of the FNP concept. The Corps, in deciding to reissue the permit, concluded, just as the AEC in Scientists Institute, supra, that the effect of delay on the public interest would be adversed and considerable. On the other hand, there was no reason for the Corps to conclude that the independence and objectivity of the AEC's licensing review would be compromised by issuance of the permit. To the contrary, the Corps was obligated to assume that the AEC would carry out its review fully and objectively regardless of the Corps' decision. As noted by the Court in Power Reactor Development Co. v. International Union, supra: We cannot assume that the [Atomic Energy] Commission will exceed its powers, or that these many safeguards to protect the public interest will not be fully effective. 367 U.S. at 415. See also Fahey v. Mallonee, 332 U.S. 245, 256 (1947). Moreover, the Corps had written assurances from the AEC that it (the AEC) was not committed "to issue any permit or license" to OPS. For these reasons it cannot be concluded that the Corps' decision to issue the permit was arbitrary or capricious. 8. Plaintiff's final argument is that OPS and JPA should be enjoined from dredging and filling pursuant to the Corps' permit because the terms of the Corps' permit cannot be met. Specifically, plaintiff argues that Lieutenant General Gribble, in authorizing reissuance of the permit, imposed a condition that OPS make a "binding commitment" that the Blount Island facility will be used for the manufacture of FNPs. Plaintiff argues that this condition, allegedly contained in the certifications of appropriate Florida agencies, was incorporated in the Corps permit. Since the AEC has not yet approved OPS' application for a manufacturing license, plaintiff argues that this "binding commitment" cannot be made. Assuming this term is incorporated in the Corps' permit, the requirement imposed by the term is simply that OPS promise JPA that it will construct the FNP facility on the Blount Island site. This condition has been met by OPS. In the "Agreement in Respect of Property and Its Development," dated June 14, 1973, in which JAP granted OPS an option to purchase a portion of Blount Island at a stipulated price, it is recognized that JPA's motive for the sale is the furtherance of port-related industrial and commercial development. Article 9 of the agreement contains OPS' express commitment to build an ENP manufacturing facility and provides for reconveyance of the Blount Island site to JPA is OPS should default in its commitment. Since the commitment is to be made to JPA and JPA is satisfied that the commitment has been made, it is difficult to see how plaintiff has standing to argue that the commitment has not been made. See Guthrie v. Alabama By-Products, 328 F. Supp. 1140 (N.D. Ala. 1971), aff'd 456 F.2d 1294 (5th Cir. 1972); Higginbotham v. Barrett, 3 ELR 20151, 20152 (5th Cir. 1973). Considering the foregoing findings of fact and conclusions of law, it is, therefore, That plaintiff's complaint for declaratory and injunctive relief is hereby dismissed, with prejudice; and, it is further That a final judgment consistent with the foregoing findings of fact and conclusions of law shall be entered herein. 4 ELR 20251 | Environmental Law Reporter | copyright © 1974 | All rights reserved |