dissenting:
Principally for the reasons set forth in Judge Telesca’s thorough opinion, — F. Supp. — (W.D.N.Y.1984), I respectfully dissent with these additional comments.
When Congress allocated the funds for the Irondequoit Bay Project it left to local authorities the decision as to what type of bridge should replace the Route 18 bridge. House Document 332 specifically stated that the project was to be “subject to the condition that responsible local agencies give assurances ... that ... they will ... [rjeplace and relocate the existing highway bridge.” H.R.Doc. 332, at 30 (emphasis added). Thus, building a replacement *92bridge was a condition precedent to the construction of the project. According to the majority opinion, the Corps acted properly within its discretion to modify the plans for the project when it decided that the Route 104 bridge would satisfy the “local interests” requirement that Congress imposed. I disagree for several reasons.
First, there is insufficient evidence in the record to support a conclusion that the New York State legislature or any local agency considers the Route 104 bridge as a substitute for the Route 18 bridge. Although there may have been some discussion of that subject years ago in 1960 when New York appropriated funds for the Route 104 bridge, the 1983 “Local Cooperation Agreement,” by which the State agreed that it would construct a replacement bridge, clearly reveals that the State and the Corps understood that the State had an outstanding obligation to provide a replacement.
Second, examining the Corps’ position compels me to conclude that it either arbitrarily deleted from the enabling legislation the precondition that there be a local decision on what bridge service would be adequate for the local communities affected, or else it determined that it — like “Big Brother” — could decide for the local communities what would be in their best interests. Viewed in either light, the Corps’ decision was plainly arbitrary and the project should be halted.
The Final Environmental Impact Statement and the Phase I General Design Memorandum both indicated that the Corps was leaving the decision of what to do about a replacement bridge to State and local authorities. That is well and good, except for the fact that it was Congress’s clear intent that the local authorities reach their decision before the Route 18 bridge was destroyed. When Congress approved the project in 1958 the Route 18 bridge was much more important to the local community than it is today, as there was then no Route 104 bridge. It seems irrational to conclude that Congress could have planned at that time that the Corps could willy-nilly destroy the Route 18 bridge prior to a local decision on what would serve as an adequate substitute.
Further, it totally contradicts Congressional purpose to say, as does the majority, that the Corps acted within its discretion to modify the terms of the project when it concluded that the Route 104 bridge would serve as a replacement bridge over the new channel. Allowing the Corps to so modify the project is to allow the Corps’ engineers to exercise their judgment as to what is and what is not in the best interests of the community. Congress never intended that such an important local decision be left to the Corps, since the Corps’ principal concern is a water project to improve the area’s recreational navigation, not the community’s need for a bridge. Allowing the Corps to substitute its judgment for the judgment of local elected authorities is beyond the scope of its discretion and constitutes an action that is “so foreign to the original purpose as to be arbitrary or capricious.” Creppel v. United. States Army Corps of Engineers, 670 F.2d 564, 572 (5th Cir.1982).
The cases that the majority cites all deal with modifications of the construction details of Corps projects and not with decisions that, like the present one, have a profound effect on local interests. For example, United States v. 255.25 Acres of Land, 712 F.2d 1263 (8th Cir.1983), involved the Corps’ decision to take land from a private landowner in order to construct a dam and reservoir. The Corps’ decision was based on its determination that in order to build the dam it was necessary to acquire property 621 feet above mean sea level. And in Creppel, 670 F.2d 564, the court held that the Corps’ decisions to modify a flood control project were within its discretion. The decisions at issue related to engineering details of the project and were reached after extensive consideration and study. See also United States v. 2,606.84 Acres of Land, 432 F.2d 1286 (5th Cir.1970), cert. denied, 402 U.S. 916, 91 S.Ct. 1368, 28 L.Ed.2d 658 (1971) (decision to take private property necessary to complete dam project within Corps’ discretion); United States ex rel. Chapman v. FPC, *93191 F.2d 796 (4th Cir.), aff'd, 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918 (1953) (decision to change location and elevation of dam within FPC’s discretion); Ryan v. Chicago, B. & Q.R. Co., 59 F.2d 137 (7th Cir.1932) (decision to increase size of dam project within discretion of Corps). The decision that the Corps has made in the present case is one dependent upon the actions of local agencies, not one solely within the professional expertise of the Corps. While the Corps has broad discretion to modify more technical decisions relating to details such as size, location, and elevation of its projects, it has no authority to make a decision in an area where Congress expressed its desire to have local interests play a critical role.
I vote therefore to affirm the decision of the district court enjoining the Corps from removing the Route 18 bridge, until assurances are received from “local interests” that it will be replaced.