343 F.

3d 199

RAYMOND PROFFITT FOUNDATION; Lehigh River

Stocking Assn., Appellants
v.
U.S. ARMY CORPS OF ENGINEERS; Debra M. Lewis, Lt.
Col., District Commander.
No. 02-3565.

United States Court of Appeals, Third Circuit.

Argued: July 9, 2003.
Filed September 3, 2003.

John Wilmer (argued), Media, PA, for Appellants.

Karen L. Tomlinson, Office of United States Attorney, Philadelphia, PA,
Anna T. Katselas (argued), Silvia Sepulveda-Hambor, United States
Department of Justice, Environment & Natural Resources Division,
Washington, DC, for Appellees.
Before NYGAARD, SMITH, Circuit Judges, and IRENAS, District
Judge.*
OPINION OF THE COURT
SMITH, Circuit Judge.

The Raymond Proffitt Foundation and the Lehigh River Stocking Association
(collectively, the "Foundation") appeal from an order of the Eastern District of
Pennsylvania granting summary judgment to the U.S. Army Corps of Engineers
("Corps"). The District Court concluded that the Water Resources Development
Act of 1990 ("WRDA"), the statute the Foundation asserts the Corps is
violating, provides no "law to apply" to the facts this case presents and that the
Corps' actions are therefore not subject to judicial review under the
Administrative Procedures Act, 5 U.S.C. 500 et seq. ("APA"). Although we
disagree with that specific holding of the District Court, the broad deference
that Congress granted the Corps in executing the environmental mission of the
WRDA places upon us the obligation to provide a correspondingly deferential

judicial review. Granting the Corps that deference, we conclude that the
Foundation has failed to demonstrate that the Corps has unlawfully delayed or
withheld agency action or otherwise been arbitrary, capricious, or in violation
of law. We will affirm the District Court's grant of summary judgment.
I.
2

The Raymond Proffitt Foundation and the Lehigh River Stocking Association
are organizations whose members fish, hunt, boat, raft, and otherwise recreate
in and along the Lehigh River downstream of the Francis E. Walter Dam
("Walter Dam") in Northeastern Pennsylvania. The Walter Dam is operated by
the Philadelphia District of the Corps as part of the Lehigh River Basin Flood
Control Project. Completed in 1961, Congress originally authorized
construction of the Walter Dam primarily for flood control, but later expanded
the mission of the Walter Dam in 1988, requiring it to be "operated in such a
manner as will protect and enhance recreation." Water Resources Development
Act of 1988, Pub. L. No. 100-676, 6, 102 Stat. 4012 (1988). Congress
subsequently enacted the Water Resources Development Act of 1990. Section
306 of this Act required the inclusion of "environmental protection as one of
the primary missions of the Corps of Engineers in ... operating, and maintaining
water resources projects." WRDA of 1990 306, 33 U.S.C. 2316 (1994).

In 1994, the Corps issued a "Revised Manual" presenting a plan of regulation

for the Walter Dam. In this manual, the Corps noted that "[t]his dam, along
with Beltzville Lake Dam and Reservoir (Corps of Engineers project) are the
only major reservoirs in the Lehigh River watershed intended to serve flood
control purposes." The Corps stated that the "primary objective of the F.E.
Walter Reservoir Project is flood control. Other objectives are lake and
downstream recreation (whitewater) and drought emergency water
supply/water quality storage."

In establishing the water control plan for the Walter Dam, the Corps stated that:

Releases made to meet minimum release criteria will be sufficient to maintain

and enhance downstream fisheries. Criteria has [sic] been developed to avoid
abrupt gate raising and closing changes during above normal releases for flood
control regulations. Efforts will be made to make releases so as to minimize
adverse shock effects on downstream fisheries.

Nonetheless, the Corps believed "[w]ater control management needs must take
precedence over fishery accommodation but the attempt should be made to

adjust procedures for fishery purposes whenever possible." Assessing the

overall effect of the water control plan, the Corps concluded the "Francis E.
Walter Reservoir provides good habitat for fisheries. The reservoir, and the
Lehigh River (below the dam), are listed as High Quality-Cold Water Fisheries
in Pennsylvania (Chapter 93 Water Quality Standards)."
7

In August of 1999, the Foundation filed a twelve count complaint against the
Corps and its Philadelphia District's Commander in the District Court.
Jurisdiction was appropriate pursuant to 28 U.S.C. 1331. Count one of the
complaint, brought pursuant to the Administrative Procedures Act, 5 U.S.C.
706, asserted that the Corps was unlawfully withholding or delaying agency
action required by 306 of the WRDA and otherwise not acting in accordance
with the WRDA. The Foundation alleged that these violations stemmed from
two actions or inactions on the part of the Corps. First, the Foundation asserted
the Corps failed to include "environmental protection" as one of the "missions"
for the Walter Dam in the drafting of the 1994 Manual. Supp. App. 8 (Pls.'
Compl. 50-52). Second, the Foundation claimed:

[t]he Corps is not fulfilling, or even attempting to fulfill its mission of

environmental protection because it a) releases large amounts of water during
high flow periods, usually in winter and spring; and b) fails to store water
during these high flow periods and release that water during low flow periods,
usually summer.

Id. (Pls.' Compl. 53).

10

Presently, the Corps' basic operational rule for the Walter Dam is that during
normal conditions the Corps will match the dam's outflow to its inflow. Thus,
the Corps generally keeps the amount of water in the Walter Dam's reservoir at
a constant elevation of 1300 feet, thereby attempting to replicate in the lower
Lehigh River below the dam the flow that would be naturally present if the
Walter Dam had not been constructed above. During the wetter winter and
spring months, more water enters the reservoir from rainfall and melting snow.
The Corps therefore releases more water from the dam, resulting in a higher
water flow and river level below. During drier summer months, as less water
falls and drains into the reservoir, the Corps releases less water from the
reservoir. This results in a correspondingly lower flow and river level below.1

11

The Foundation believes that, so as to "provide a better environment for aquatic

species, provide recreation for fisherman [sic], canoeists, and provide
whitewater rafting throughout the summer," the Corps is "required" by the

WRDA to improve upon the naturally occurring environment by augmenting

the lower Lehigh River's flows in the summer. The Foundation therefore
sought declaratory and injunctive relief mandating the Corps to change its
policy and operations at the Walter Dam to reflect the judgments of the
Foundation regarding the proper operation of the dam. The Corps responded to
this first claim by asserting that 306 of WRDA is a mission statement which
is fundamentally discretionary in nature, committed to the agency by law, and
unreviewable through the APA.
12

The District Court granted summary judgment to the Corps on all of the
Foundation's claims, holding with respect to count one that the Corps' actions
under the WRDA were unreviewable because the WRDA did not provide any
"law to apply" to this situation. Raymond Proffitt Found. v. U.S. Army Corps of
Eng'rs, 175 F.Supp.2d 755, 767 (E.D.Pa.2001).2 The District Court reasoned
that the WRDA's "environmental protection mission was placed upon the
Corps as a whole, not upon each individual water resources project. The Corps
has the discretion to apply this statutory mission to water resources projects that
it operates, but is not obligated to implement it at any particular one." Id. at
767. "The text of 2316 provides only a general statement that establishes
environmental protection as one of the Corps' primary missions. However, this
language gives no guidance on how this mission is to be carried out." Id. at
766. Therefore, the District Court reasoned that this statute fit within the
exception from reviewability applied by the Supreme Court in Heckler v.
Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

13

The Foundation appealed only from the District Court's judgment on count one
that "[t]he mission statement of 2316 is insufficient to provide law to apply in
this case" and that the Foundation can, therefore, assert no violation of the
WRDA through the APA. 175 F.Supp.2d at 767. Jurisdiction is proper in this
Court pursuant to 28 U.S.C. 1291. "Our scope of review of the district court's
decision on" whether "judicial review was ... available pursuant to 5 U.S.C.
701(a)(2)" and whether the agency action was not "in accordance with law ... is
plenary." See Davis Enters. v. U.S. E.P.A., 877 F.2d 1181, 1184 (3d Cir.1989).
However, where Congress has granted discretion to an agency to make
decisions, "[w]e are only free to determine whether the agency followed its
own guidelines or committed a clear error of judgment." Id. at 1186 (citing
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct.
814, 28 L.Ed.2d 136 (1971)). "While we may not have made the same decision
as the [agency], we are not free to substitute our judgment for that of the agency
on [an] issue." Id.

II.

14

Section 306 of the WRDA states: "The Secretary [of the Army] shall include
environmental protection as one of the primary missions of the Corps of
Engineers in planning, designing, constructing, operating, and maintaining
water resources projects." 33 U.S.C. 2316(a).3 In the event that an
administrative agency covered by the strictures of the APA violates a statute,
the APA provides that a "person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. 702. Both
"[a]gency action made reviewable by statute and final agency action for which
there is no other adequate remedy in a court are subject to judicial review." 5
U.S.C. 704. In such an instance, the "reviewing court shall (1) compel
agency action unlawfully withheld or unreasonably delayed; and (2) hold
unlawful and set aside agency action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law; ..." 706. However, "[t]his chapter" does not "apply ... to the extent
that (1) statutes preclude judicial review; or (2) agency action is committed
to agency discretion by law." 701(a). The Corps does not contend that the
WRDA facially precludes judicial review. Rather, the Corps contends that the
agency actions with which the Foundation is concerned are impliedly
"committed to agency discretion by law." 701(a)(2).

A.
15

"The APA's `generous review provisions must be given a "hospitable"

interpretation.'" Hondros v. U.S. Civil Service Comm'n, 720 F.2d 278, 293 (3d
Cir.1983) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507,
18 L.Ed.2d 681 (1967)). "[O]nly upon a showing of `clear and convincing
evidence' of a contrary legislative intent should the courts restrict access to
judicial review." Abbott Labs., 387 U.S. at 141, 87 S.Ct. 1507 (quoting Rusk v.
Cort, 369 U.S. 367, 379, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962)). "In Citizens to
Preserve Overton Park, Inc. v. Volpe, ... the Supreme Court interpreted section
701(a)(2) as establishing a broad presumption in favor of reviewability, holding
that the exception applied only when there is no law to apply." Davis Enters.,
877 F.2d at 1184-85. In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84
L.Ed.2d 714 (1985), the Supreme Court first found occasion to apply this
exception.

16

Heckler considered whether "a decision of an administrative agency to exercise

its `discretion' not to undertake certain enforcement actions is subject to judicial
review under the Administrative Procedure Act, 5 U.S.C. 501 et seq. (APA)."
Id. at 823, 105 S.Ct. 1649. The petitioners were prison inmates sentenced to
death by lethal injection who asserted that the use of those "drugs for capital

punishment violated the Federal Food, Drug, and Cosmetic Act ... and
request[ed] that the FDA take various enforcement actions to prevent these
violations." Id.
17

Nothing that "[t]he Act's general provision for enforcement, 372, provides only
that `[t]he Secretary is authorized to conduct examinations and investigations
...' (emphasis added)," id. at 835, 105 S.Ct. 1649 (emphasis in original), the
Supreme Court reasoned the "Act's enforcement provisions thus commit
complete discretion to the Secretary to decide how and when they should be
exercised." Id. The Court emphasized that the "general exception to
reviewability provided by 701(a)(2) for action `committed to agency
discretion' remains a narrow one, see Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), but within that
exception are included agency refusals to institute investigative or enforcement
proceedings, unless Congress has indicated otherwise." Id. at 838, 105 S.Ct.
1649.

18

Since Heckler, the Supreme Court has extended its holding to other contexts,
concluding that other agency decisions were "committed to agency discretion
by law." 5 U.S.C. 701(a)(2). In Webster v. Doe, 486 U.S. 592, 108 S.Ct.
2047, 100 L.Ed.2d 632 (1988), an employee contested his dismissal by the
CIA's Director pursuant to 102 of the National Security Act. That Act
provided that the "`Director of Central Intelligence may, in his discretion,
terminate the employment of any officer or employee of the Agency whenever
he shall deem such termination necessary or advisable in the interests of the
United States....'" Id. at 594, 108 S.Ct. 2047 (quoting 50 U.S.C. 403(c)
(current version at 50 U.S.C. 403-4(h))). The Court found "that the language
and structure of 102(c) indicate that Congress meant to commit individual
employee discharges to the Director's discretion, and that 701(a)(2)
accordingly precludes judicial review of these decisions under the APA." Id. at
601, 108 S.Ct. 2047.

19

The petitioners in I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S.

270, 107 S.Ct. 2360, 96 L.Ed.2d 632 (1987) sought to appeal the Interstate
Commerce Commission's denial of reconsideration of an earlier administrative
decision solely on what the petitioners asserted had been a "material error." The
statute provided that the "`Commission may ... because of material error, new
evidence, or substantially changed circumstances ... (B) grant rehearing.'" Id. at
277-78, 107 S.Ct. 2360 (quoting 49 U.S.C. 10327(g) (current version at 49
U.S.C. 722(c))). The Court reasoned that because there was no "new
evidence" or "changed circumstances" alleged to the I.C.C. after it issued the
original order,

20

an appeal [of the order denying reconsideration vis-a-vis an appeal from the
original order] places before the courts precisely the same substance that could
have been brought there by appeal from the original order but asks them to
review it on the strange, one-step-removed basis of whether the agency
decision is not only unlawful, but so unlawful that the refusal to reconsider it is
an abuse of discretion.

21

Id. at 278-79, 107 S.Ct. 2360. The Supreme Court reasoned that the appeal was,
or would become, a mechanism for evading the statute of limitations applicable
to a challenge of the original order and decided that the reconsideration denial
was therefore "unreviewable" unless one of the two other bases for
reconsideration are asserted. Id. at 279-80, 107 S.Ct. 2360. Later, the Supreme
Court also held that the "allocation of funds from a lump-sum appropriation is
another administrative decision traditionally regarded as committed to agency
discretion." Lincoln v. Vigil, 508 U.S. 182, 192, 113 S.Ct. 2024, 124 L.Ed.2d
101 (1993).

22

To date, the Supreme Court has only applied the Heckler exception on an ad
hoc basis. Nonetheless, this Court has

23

set forth [an] analytical framework to be followed before the court may
determine that an agency decision is unreviewable under section 701(a)(2). To
so hold, we must consider whether: 1) the action involves broad discretion, not
just the limited discretion inherent in every agency action; 2) the action is the
product of political, military, economic, or managerial choices that are not
readily subject to judicial review; and 3) the action does not involve charges
that the agency lacked jurisdiction, that the decision was motivated by
impermissible influences such as bribery or fraud, or that the decision violates a
constitutional, statutory, or regulatory command.

24

Davis Enters., 877 F.2d at 1185 (citing Local 2855, AFGE (AFL-CIO) v.
United States, 602 F.2d 574 (3d Cir.1979)) (citations omitted). In Local 2855,
when we first articulated this framework and applied it to hold an agency action
unreviewable, a union challenged the Army's decision to contract out certain
services to a private contractor. "[O]bserv[ing] that the statute is, for the most
part, `written in language of permission and discretion,'" the panel reasoned that
"on the face of the statute there is simply `no law to apply' in determining if
[the] decision is correct." Local 2855, 602 F.2d at 581 (quoting Southern Ry.
Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 455, 99 S.Ct. 2388, 60
L.Ed.2d 1017 (1979); Overton Park, 401 U.S. at 410, 91 S.Ct. 814).

25

Applying the foregoing principles, the District Court erred in concluding that

25

Applying the foregoing principles, the District Court erred in concluding that
the WRDA falls within the APA's exception from reviewability contained in
701(a)(2) because the WRDA does not contain "law to apply." Proffitt Found.,
175 F.Supp.2d at 767. There can be no doubt that the text of 306 grants the
Corps very broad discretion. However, "[b]road discretionary powers" are
merely "[a] predicate to nonreviewability." Local 2855, 602 F.2d at 578. The
"committed to agency discretion exception to judicial review is intended to be
`applicable in those rare instances where statutes are drawn in such broad terms
that in a given case there is no law to apply.'" Id. at 578-79 (quoting Overton
Park, 401 U.S. at 410, 91 S.Ct. 814 (internal citation omitted)) (emphasis
added). In count one, the Foundation alleges two separate actions by the Corps
which purportedly violate the WRDA. We consider, in turn, whether each of
these agency actions are subject to judicial review.

B.
26

The Foundation first alleges that the Corps failed to take action to include
"environmental protection" as one of the "missions" for the Corps both overall
and specifically at the Walter Dam. The statute at issue certainly provides law
against which we can consider those allegations. While it appears that the broad
language of the WRDA means that few actions the Corps takes with respect to
any particular water resources project will violate the APA, the WRDA clearly
imposes an affirmative obligation to "include environmental protection as one
of the primary missions of the Corps of Engineers in planning, designing,
constructing, operating, and maintaining water resources projects." 33 U.S.C.
2316(a).4 The one common thread running through the Supreme Court and
Third Circuit precedents in this area is that where an agency's assertion that a
decision "committed to agency discretion by law" has been upheld, "on the face
of the statute there is simply `no law to apply' in determining if [a] decision is
correct." Local 2855, 602 F.2d at 581 (emphasis added). See, e.g., Heckler, 470
U.S. at 835, 105 S.Ct. 1649 ("`[t]he Secretary is authorized to conduct
examinations and investigations...' (emphasis added)") (emphasis in original);
Webster, 486 U.S. at 594, 108 S.Ct. 2047 (the "`Director of Central Intelligence
may, in his discretion, terminate the employment ... whenever he shall deem
such termination necessary ...'") (emphasis added); Locomotive Eng'rs, 482
U.S. at 277-78, 107 S.Ct. 2360 (the "`Commission may ... grant rehearing'")
(emphasis added); cf. Lincoln, 508 U.S. at 185, 113 S.Ct. 2024 ("the Snyder
Act authorizes the Service to `expend such moneys as Congress may from time
to time appropriate, for the benefit, care, and assistance of the Indians,'"
through "lump-sum appropriations"); Local 2855, 602 F.2d at 581 ("we
observe that the statute is, for the most part, `written in language of permission
and discretion.'"). Nonetheless, that is not dispositive. Where a statute itself has
been permissive or discretionary as to the agency, this Court has even read an

agency's self-imposed practices or regulations into the statute so as to provide a

basis for review. See, e.g., Hondros v. U.S. Civil Service Comm'n, 720 F.2d
278, 294 (3d Cir.1983) (the "Service has a regularized method for evaluating its
employees" against which the employee's service could be compared); Davis
Enterps., 877 F.2d at 1185 (the "agency regulations or internal policies provide
sufficient guidance to make possible federal review under an abuse of discretion
standard ... even absent express statutory limits on agency discretion.").
27

In contrast, the statute at issue here states that the "Secretary shall include
environmental protection as one of the primary missions of the Corps of
Engineers in planning, designing, constructing, operating, and maintaining
water resources projects." 33 U.S.C. 2316(a) (emphasis added). Unlike other
statutes where courts have found decisions committed to agency discretion by
law, this statute is not "written in language of permission and discretion." See
Local 2855, 602 F.2d at 581. 5 The statute requires the consideration of
environmental protection when "operating, and maintaining water resources
projects." See 2316(a). The Corps admits as much in its brief, stating that the
"sole `command' identified by Proffitt under this criterion is Section 306 itself."
Corps Br. at 26. Certainly, how the Corps implements this environmental
protection mission appears to be left to the vast discretion of the Corps. There
is, however, no discretion granted to the Corps on the issue of whether or not
they are supposed to include environmental protection as a mission. They are.

28

Section 306 also fails the specific analytical test this Court established in Local
2855, and reaffirmed post-Heckler in Davis Enterprises, for determining
whether a given decision is committed to agency discretion by law. While the
Corps' actions under the WRDA appear to meet two of that test's three factors,
they completely fail the last. "[T]he action [by the Foundation] does ... involve
charges that the agency ... decision violates a constitutional, statutory, or
regulatory command." See 877 F.2d at 1185 (emphasis added).

29

In sum, the District Court erred in concluding that the WRDA provides no "law
to apply" to the Foundation's first allegation that the Corps failed to include
environmental protection as one its overall missions and as one of the specific
missions of the Walter Dam. Raymond Proffitt Found., 175 F.Supp.2d at 767.
There is law to apply. As the Corps itself effectively conceded at oral argument,
where the Corps has "completely abdicated its environmental protection
responsibilities," then "this statute, broad as it is, provides law to apply."
Because the Foundation's complaint makes such allegations, we are free to
review the Corps' actions to determine its compliance with 306.

C.

30

31

In addition to its allegations that the Corps is not including environmental

protection as part of its "missions," the Foundation asserts that, by its actions in
the actual operation of the Walter Dam, the "Corps is not fulfilling, or even
attempting to fulfill its mission of environmental protection." Nonetheless, just
because the Foundation's first allegation of unlawful agency action under 306
is amenable to judicial review, it does not necessarily follow that all of its
allegations pursuant to that statute are subject to judicial review. In Lincoln v.
Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993), the Supreme
Court established that while agency action pursuant to a general Congressional
authorization may be amenable to judicial review in a broad sense, certain
specific "categories of administrative decisions that courts traditionally have
regarded as `committed to agency discretion'" may not be reviewable within the
context of that broader mandate. Lincoln addressed a challenge by an Indian
tribe to certain specific expenditures of the Indian Health Service within the
context of a lump-sum appropriation from Congress. That appropriation
"authorize[d] the Service to `expend such moneys as Congress may from time
to time appropriate, for the benefit, care, and assistance of the Indians,' for the
`relief of distress and conservation of health.'" Id. at 185, 113 S.Ct. 2024
(quoting 25 U.S.C. 13).
Generally, an aggrieved party can bring an action to challenge an agency's
expenditures as inconsistent with the "permissible statutory objectives" for
which Congress appropriated the funds. See id. at 193, 113 S.Ct. 2024; see also
Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974)
(considering whether the Bureau of Indian Affair's implementation of its
general assistance program was consistent with Congressional intent in
appropriating the program funds).6 Nonetheless, Lincoln stands for the
principle that once that initial level of judicial review is passed, the specific
execution by the agency to meet those objectives may still be left entirely
within its discretion. The Lincoln Court held that the APA precluded judicial
review of the specific allegations of those plaintiffs, reasoning that the
"allocation of funds from a lump-sum appropriation is another administrative
decision traditionally regarded as committed to agency discretion. After all, the
very point of a lump-sum appropriation is to give an agency the capacity to
adapt to changing circumstances and meet its statutory responsibilities in what
it sees as the most effective or desirable way." Lincoln, 508 U.S. at 192, 113
S.Ct. 2024. "[A]s long as the agency allocates funds from a lump-sum
appropriation to meet permissible statutory objectives, 701(a)(2) gives the
courts no leave to intrude. `[T]o [that] extent,' the decision to allocate funds `is
committed to agency discretion by law.'" Id. at 193 (quoting 5 U.S.C. 701(a)
(2)).

32

As part of its allegations that the specific operational policies of the Corps
violate 306, the Foundation apparently reads 306 to prohibit the Corps from
implementing at each and every water resources project under its administration
any policies "causing harm to the aquatic life." Foundation Br. at 9. However,
the WRDA states only that the "Secretary shall include environmental
protection as one of the primary missions of the Corps ... [at] water resources
projects." 33 U.S.C. 2316(a) (emphasis added). Congress did not clearly
instruct the agency to "implement" that mission at any specific water resources
project, let alone suggest how it should do so. Because 306 provides "no
objective standards" that "dictate how the Agency must implement this mission
or how it must balance [environmental protection] with its other
responsibilities," the Corps argues that 306 "properly committed to the Corps'
discretion" any judgments regarding the implementation of that mission.

33

We need not conclusively decide the proper interpretation of 306 to determine

whether the exception to review contained in APA 701(a)(2) applies to these
allegations. Before us now are not the merits of the Foundation's allegations,
but whether judicial review of these specific actions is precluded because "on
the face of the statute there is simply `no law to apply.'" Local 2855, 602 F.2d
at 581. Courts cannot preclude judicial review simply because a party appears
likely to lose on the merits. That would put the cart before the horse. Rather, in
determining whether judicial review is available in the first instance, we look
for "`clear and convincing evidence' of a contrary legislative intent" before we
will "restrict access to judicial review." Abbott Labs., 387 U.S. at 141, 87 S.Ct.
1507 (quoting Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 7 L.Ed.2d 809
(1962)). We will now consider 306 only that far.

34

Compared to some of the more affirmative instructions Congress has given the
Secretary and the Corps in later sections of the WRDA,7 Congress' use of the
phrase "include ... as one of the primary missions" in 306 if that phrase really
is to mean "implement to the fullest at every" water resources project, as the
Foundation suggests, strikes us as peculiar. See Whitman v. Am. Trucking
Assoc., 531 U.S. 457, 466, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ("Words ... are
given content, however, by their surroundings"). It would seem more than
peculiar, however, to suggest that the Corps can simply develop a generic
environmental mission statement and proceed to completely ignore it at every
water resources project it administers. But see Nat'l Treasury Employees Union
v. Horner, 854 F.2d 490, 495 (D.C.Cir.1988) (Congress may be "indifferent to
the choices an agency makes, within a sphere of action delegated to it, and ...
reserve oversight exclusively to itself by precluding judicial review"). Granted,
requiring the Corps to "include" an environmental protection "mission" does
not seem to demand much of the Corps. Arguably then, it may be contrary to

Congressional intent for the judiciary to examine whether anything the Corps
does, beyond the mere consideration of environmental protection as part of its
overall mission, violates this statute. See Lincoln, 508 U.S. at 194, 113 S.Ct.
2024 ("The reallocation of agency resources to assist handicapped Indian
children nationwide clearly falls within the Service's statutory mandate"
generally, but the specific "decision to terminate the Program [at issue] was
committed to the Service's discretion" and unreviewable.). We note, however,
that Congress did not simply call for the consideration of environmental
protection; it directed that the environmental protection mission be "primary,"
and directed its inclusion specifically in the context of the Corps' "planning,
designing, constructing, operating, and maintaining" of its "water resources
projects." 2316. This suggests that actual application of that mission in those
specific contexts may well have been contemplated.
35

Overall, we do not see clear and convincing evidence that the Foundation's
interpretation of 306 that the Corps shall seek to implement environmental
protection when operating its water resources projects is contrary to
legislative intent. Therefore, for purposes of determining whether judicial
review is available for the allegation that the Corps' operational policy violates
306, the statute (if ultimately given that interpretation) would give us at least
some law to apply. "No one doubts that [the Corps] must have `very broad
discretion' in the administration of the [project]. But even very broad discretion
is not the same as unreviewable discretion." Nat'l Treasury Employees Union,
854 F.2d at 495. Nonetheless, having determined that these allegations are
amenable to judicial review based on the colorable interpretation of 306 that
the Foundation posits, the merits of whether the statute actually requires or
prohibits the specific actions the Foundation alleges or whether the agency is
abusing any discretion Congress has granted it is an entirely separate matter.

III.
36

While the District Court erred in holding that the exception to reviewability
contained in 701 applies to the Foundation's claims, the District Court
acknowledged that "to the extent that plaintiffs claim that the Corps as a whole
has failed to take any action to implement 2316, there is evidence of at least a
minimal response by the Corps." Raymond Proffitt Found., 175 F.Supp.2d at
767. It believed that this would be "enough to satisfy the minimum action
required of the agency under the APA." Id. at 768. We agree.

37

The WRDA demands the inclusion of "environmental protection as one of the

primary missions of the Corps of Engineers[']... water resources projects." 33
U.S.C. 2316 (emphasis added). Stated another way, when the Corps of

Engineers is developing and operating its various water resources projects, one
of the primary tasks the Corps is to include is environmental protection.
Congress has, however, left the meaning of the phrase "environmental
protection" undefined for purposes of 306. This leaves the Corps with
discretion to determine what "environmental protection" is appropriate in a
given context. That conclusion is reinforced by the fact that 306 does not
itself purport to place any specific, new requirements on the Corps, but
expressly recognizes that "[n]othing in this section affects (1) existing Corps
of Engineers' authorities, including its authorities with respect to navigation and
flood control..." 2316(b).
38

Under the WRDA, "the discretion Congress gave to" the Corps "is not
unfettered." Nat'l Treasury Employees Union, 854 F.2d at 495. In this situation,
however, where

39

Congress is not indifferent to the choices an agency makes, within a sphere of

action delegated to it, and does not reserve oversight exclusively to itself by
precluding judicial review, then we presume the legislature expected the court
to review those choices with a degree of scrutiny calibrated to the issues
involved.

40

Id. (emphasis added). Similar to the Snyder Act at issue in the Supreme Court's
decision in Lincoln, the WRDA speaks only of "water resources projects,"
plural, in general terms, and does not specifically reference or otherwise elevate
any particular projects or class of projects for more detailed consideration. Cf.
Lincoln, 508 U.S. at 193-94, 113 S.Ct. 2024 (the "appropriations Acts for the
relevant period do not so much as mention the Program, and both the Snyder
and the Improvement Act likewise speak about Indian health only in general
terms"). Lincoln is not, of course, specifically controlling. Nonetheless, a
fortiori, a limited and very deferential review of the Corps' actions in the
absence of some Congressional intent to the contrary is appropriate here.
"Courts are ... competent to determine whether an agency has exercised its
discretion broad though it be in a manner arbitrary and capricious." Nat'l
Treasury Employees Union, 854 F.2d at 496. Nonetheless, "we recognize that
our scope of review of the [agency's] function under [the statute] is severely
limited because the statute ... vest[s] rather broad discretion in the [agency]."
See Chong v. Director, U.S. Information Agency, 821 F.2d 171, 176 (3d
Cir.1987).

41

Applying these principles to the record before us and the specific actions that
the Foundation argues are in violation of the WRDA, the Corps did not
unlawfully withhold agency action or otherwise act not in accordance with law.

First, the Corps has taken steps to include environmental protection as one of
the missions of both the Corps, overall, and the Walter Dam specifically. In
1996, the Corps published its current environmental restoration and protection
policies in its digest of water resources policies and authorities. These policies
were "significantly revised to reflect the increased emphasis being placed upon
ecosystem restoration and protection within the Corps of Engineers (Corps)
Civil Works Program. In particular," the policy was a response to "the
programs and policies established by recent Water Resources Development
Acts." App. 48.
42

The Corps' digest specifically states its twenty-seven page "guidance on

ecosystem restoration is believed to account for the requirements of" the
WRDA of 1990. Id. at 53. As part of that policy, the Corps acknowledges that,
under the Endangered Species Act of 1973, if an "operational activity will
negatively impact an endangered or threatened species or its critical habitat,"
the Corps "will initiate the preparation of a biological opinion by the USFWS
[United States Fish & Wildlife Service] and/or the NMS [National Maritime
Service]." Id. at 60. The Corps acknowledges its "responsibilities under the
CWA [Clean Water Act]." Id. The policy even states the circumstances under
which the Corps will "provide mitigation for adverse impacts on the
environment, including fish and wildlife resources." Id.

43

At the Walter Dam in particular, the 1994 F.E. Walter Reservoir Water Control
Manual describes how the Corps will "include environmental protection ... in ...
operating, and maintaining [the] water resources project[]" specifically at issue
here. See 33 U.S.C. 2316(a). While the "primary objective of the F.E. Walter
Reservoir Project is flood control[, o]ther objectives are lake and downstream
recreation (whitewater) and drought emergency water supply/water quality
storage." Supp.App. 64 (emphasis added). Furthermore, the Corps long ago
conducted an environmental assessment for the operation and maintenance of
the Dam. Nonetheless, at this particular project, the Corps believes "[w]ater
control management needs must take precedence over fishery accommodation
but the attempt should be made to adjust procedures for fishery purposes
whenever possible." Id. at 80.

44

The record reflects that the Corps has included environmental protection in both
its overall operation of its water resources projects and, in particular, at the
Walter Dam. The Corps has decided, however, to continue to emphasize flood
control as the primary objective of this particular facility, something the
WRDA certainly permits it to do. See 33 U.S.C. 2316(b). While we have no
reason to consider whether the Corps actions are "a comprehensive response to
the enactment of 2316," we agree with the District Court that they are

"enough to satisfy the minimum action required of the agency under the APA."
Raymond Proffitt Found., 175 F.Supp.2d at 768.
45

We also conclude that the Corps has not violated 306 of the WRDA by
refusing to operate the Walter Dam in the specific manner proposed by the
Foundation.8 Although there is no longer any claim by the Foundation that the
Corps is failing to comply with any federal environmental protection statute,9
the Foundation asserts that the Corps "causes harm to the environment" by
failing to further alter the river's natural flows. However, absent more
particularized language from Congress or the agency itself that 306 demands
more, "our scope of review ... is severely limited because the statute ... vest[s]
rather broad discretion in the [agency]." See Chong, 821 F.2d at 176. Without
dwelling on the question of whether the Foundation's proposed scheme to
further alter the Lehigh River's natural flows would, itself, constitute harm to
the environment, as some would no doubt argue, suffice it to say insofar as
306 of the WRDA is concerned, Congress has granted vast discretion to the
Corps in making this determination. The record does not contain sufficient
evidence to show that the Corps' decision to generally reproduce in the Lehigh
River the flows that nature herself would produce, as opposed to "improving"
on nature, was "arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law," or resulted in "agency action unlawfully withheld or
unreasonably delayed." 5 U.S.C. 706.

IV.
46

We will affirm, but for reasons differing from those offered by the District
Court. The WRDA directs that "environmental protection" be included as one
of the "primary missions" of the Corps at its "water resources projects." There
is nothing discretionary about this command. The District Court erred in
concluding there was no "law to apply" in the WRDA and that the exception to
reviewability in 5 U.S.C. 701(a)(2) precludes judicial review of the actions
the Foundation alleges are unlawful.

47

Nonetheless, by failing to give the Corps any particular instructions on how this
environmental protection mission is to be included in the Corps' activities,
Congress has vested broad discretion in the Corps to determine where, when,
and how much of the WRDA's environmental protection mission should be
implemented at a given water resources project. The Corps has demonstrated
that it is making environmental protection one of its primary missions.
Furthermore, the Corps has specifically taken actions to facilitate the protection
of the environment at the Walter Dam. Therefore, considering the broad
discretion 306 of the WRDA grants the Corps and the correspondingly

deferential review that discretion requires of the judiciary, we will affirm the
judgment of the District Court.

Notes:
*

Honorable Joseph E. Irenas, Senior United States District Judge for the District
of New Jersey, sitting by designation

The Corps' policy is not to fully replicate in the river below the same flow that
would result if the dam had never been built. Obviously, as a flood control
project, the outflows from the Walter Dam reservoir will be constrained when
necessary to prevent downstream flooding. Furthermore, in accordance with the
project's secondary recreational purpose, the Corps' policy is to raise the
reservoir's level 0.7%, five times a year, to facilitate whitewater rafting events
on the river below. The Foundation does not assert that either of these practices
are unlawful

The District Court also granted summary judgment on the Foundation's other
eleven claims. Worth noting is that the District Court dismissed the claims that
the Corps was violating the federal Clean Water Act ("CWA") and the National
Environmental Policy Act ("NEPA") at the Walter Dam. As notedinfra, the
Foundation did not appeal from the dismissal of those claims.

Nonetheless, the WRDA provides that "[n]othing in this section affects (1)
existing Corps of Engineers' authorities, including its authorities with respect to
navigation and flood control ..." 33 U.S.C. 2316(b)

We note that, in actuality, the text of 306 does not facially impose any duty on
the Corps of EngineersSee 33 U.S.C. 2316(a) ("The Secretary [of the Army]
shall include..."); see also 33 U.S.C. 2201 (defining the "Secretary"). The
Secretary of the Army was not made a defendant in this suit. Nonetheless, the
parties, as well as the District Court, all appear to have assumed that 306 also
imposes a direct duty on the Corps of Engineers, disputing only whether the
execution of that duty is "committed to agency discretion by law." 5 U.S.C.
701(a)(2). Therefore, we assume, without deciding, that 306 applies equally
to the Corps.

Neither the Corps nor the Foundation cite to a case where a "shall" statute such
as the WRDA has been held to grant unreviewable discretion to an agency

This assumes, of course, that a plaintiff meets all jurisdictional and

administrative prerequisites for bringing such a claim

See, e.g., WRDA of 1990 307(b), 33 U.S.C. 2317(b) ("The project under
this subsection shall be carried out to improve the quality of effluent discharged
from publicly owned treatment works ..."); 307(d) (establishing a wetland
enhancement goal and giving "Factors to consider"); 313(a), (c), 33 U.S.C.
2320(a), (c) ("the Secretary shall consider the impact of the project on existing
and future recreational and commercial uses ..." and, in doing so, "take such
actions as may be necessary to restore such recreational use...").

We previously considered 306's interpretation only to the extent necessary to

determine if judicial review of the Corps' actions was appropriate. However,
because the parties did not brief the actual merits of their proffered
interpretations, we will assume without deciding for purposes of this analysis
that 306 does require the Corps to implement its environmental protection
mission once "include[d]." 33 U.S.C. 2316

As noted,supra, the District Court granted summary judgment to the Corps on

the Foundation's claims that the Corps was violating the CWA and NEPA. The
Foundation did not appeal from those judgments.