(dissenting):
On the question of the sufficiency of the EIS I would affirm on the opinion of Judge Blumenfeld below (389 F.Supp. 1263 (D.Conn.1974)), which the majority opinion properly characterizes as “thorough and carefully considered.” The major issue on this appeal involves the change of the dumping site from its initial locus, Brenton Reef, to New London. On this point the trial judge, who conducted a three-day trial, concluded:
There was expert testimony at the hearing on this matter that on the basis of present scientific knowledge there is no way to tell whether Brenton Reef or New London is a better site with respect to containment characteristics. This expert evaluation was by Dr. John B. Pearce, who chaired the meetings of the Scientific Advisory Subcommittee, and Dr. Pearce indicated that this opinion was generally shared by that body. The court concludes that the evidence presented is enough to meet the relatively light burden placed upon the Navy by the “substantive” standard of review.
Id. at 1292 (footnote omitted). This is a question of fact determined below which I cannot characterize as “clearly erroneous” and hence I see no reason for a remand to conduct further protracted hearings.1
The record further establishes to my satisfaction that there is a dearth of information with respect to long-term ecological marine damage from sea dumping. This is precisely why the permit issued here was conditioned upon the maintenance of a comprehensive monitoring and environmental effects study on the site administered by the National Oceanographic and Atmospheric Admin*96istration. This program has been funded in the sum of $500,000, and is presently in operation. In the event that any significant adverse environmental effects are detected, the disposal permit may be summarily suspended and the disposal operation will be altered or perhaps moved to a different site which the Corps had agreed to begin to study prior to the commencement of disposal at the New London site.2
The future ability of the defendants to control the drifting or leakage of the spoilage at the New London site is a factor which cannot be disregarded and must be given weight in assessing the sufficiency of the EIS. Sierra Club v. Morton, 510 F.2d 813, 828 (5th Cir. 1975); Gulf Oil Corp. v. Morton, 493 F.2d 141, 144 (9th Cir. 1973). It is further conceded here that the haulage of the spoilage some 23 miles further to Brenton Reef would entail an additional cost of 7 million dollars. In view of these facts and reading the EIS as supplemented, one cannot reasonably describe the agency decision to utilize New London as “arbitrary or capricious,” or an “abuse of discretion.” Chelsea Neighborhood Ass’ns v. United States Postal Service, 516 F.2d 378, 387 n.23 (2d Cir. 1975).
I further disagree with the majority’s determination in part 3 of the opinion that the EIS should evaluate the impact of pending proposals as a result of which at some future date other polluted spoil might be dumped at the New London site. In addition to the reasons advanced below, I think it is reasonable to assume that environmental groups will mount further attacks on such projects as assiduously as they have here. It is unrealistic to anticipate projects which have not been finally approved, adopted or funded. Rather, I submit the present dumping at issue here should be considered by those agencies in making their decisions as to whether or not to utilize New London in the future.
I do agree with the majority that the dismissal of the FWPCA count discussed in part 1 of the opinion was improper in view of our decision in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 938-39 & n.62 (1974). While I agree that our holding there disposes of the time bar issue, I disagree that any remand is necessary. Assuming jurisdiction to review exists under 33 U.S.C. § 1365(a), 28 U.S.C. § 1331 or the Administrative Procedure Act, 5 U.S.C. §§ 701 — 706, the issue is whether or not there is a statement of claim for a violation of 33 U.S.C. § 1344. I see none since there was no applicable EPA effluent standard in effect at the time the permit was issued'. As the record makes clear, Long Island Sound is considered an inland water and the only standards promulgated by the EPA involve ocean dumping criteria. The fact that the Corps made reference to ocean dumping criteria in the issuance of its permit hardly transforms Long Island Sound into the Atlantic Ocean. These regulations are not applicable on their face and I do not see how territorial expansion of jurisdiction set forth in the regulation can be conferred by consent. While we can insist that an agency follow its own regulations where they are clearly applicable, see Feliciano v. Laird, 426 F.2d 424, 429 (2d Cir. 1970), that situation is not here present.
Aside from the question of the adequacy of the EIS as supplemented, I am compelled to disagree with the injunctive relief granted in the majority opinion which precludes further dumping at New London until a new EIS is prepared and *97the FWPCA claim is resolved. The majority argues that injunctive relief is necessary because the plaintiffs have made out a clear case on the merits and irreparable damage could be caused by a resumption of the dumping. While the plaintiffs have prevailed on the merits here the major issue involved is one of the adequacy of the EIS.' In light of the staggering costs involved in utilizing another site, the present New London site may be more explicitly supported and the apparent tergiversation of the Government vindicated in any subsequent EIS. The opinion here does not, as I read it, eliminate New London but simply requires a more detailed explication for its selection.
Moreover, I see no proof at all of any immediate irreparable harm which would justify temporary injunctive relief. The monitoring program, which is a condition of the granting of the permit and which was developed in conjunction with the Scientific Advisory Subcommittee, the Army Corps of Engineers, the Navy, the EPA and the States of New York and Connecticut, is certainly designed to prevent any such damage to marine life and to preclude the immediate harm which the majority apprehends. In fact, the principal complaint of the appellants here is that the environmental monitoring program, presently funded for a two-year period, will be ineffective to forestall long-term environmental consequences. There is no serious contention that damage will occur in the immediate future. Moreover, I note that, on the oral argument of this appeal, the appellees represented that further funding and an extension of the program will be sought. In view of the good faith and scientific expertise of the bodies involved, I would consider the damage to be remote and not established in the record before us.
There is further the question of balancing of hardships, which is a legitimate inquiry in the issuance of the temporary relief here sought. E. g., Exxon Corp. v. City of New York, 480 F.2d 460, 463-64 (2d Cir. 1973). The project involved and halted in medias res affects the national defense. The work now projected involves widening and deepening the channel from the Gold Star Memorial Bridge to the Naval Submarine Base so that the new SSN 668 submarines (the first of which was scheduled to arrive in July 1975) would have access to the Naval Submarine Base in 1976. The remand here requiring the preparation of a new EIS, with further hearings and undoubtedly further appeals, will obviously delay that project. I can only assume that the deployment of these submarines and their access to the base has some relevancy to the defense of the United States. At the very least the issue should be remanded to determine how vital these interests are in comparison with the interim spoliation which the issuance of the temporary injunction implies. The issuance of an injunction without any opportunity for the trial court to make this factual determination constitutes, I think, an abuse of appellate discretion.
In sum, I believe the injunction and remand directed here are unwarranted. While the EIS as revised may not be as perfectly prepared or polished as my brothers or I would like, I believe with Judge Blumenfeld that under all the circumstances, particularly the existence of the unique environmental monitoring program now in effect, it fully complies with the law. Hence I respectfully dissent.
. In footnote 7, the majority opinion maintains that the “clearly erroneous” test of appellate review does not apply in our assessment of the adequacy of the EIS since this determination involves the drawing of legal conclusions and inferences from facts, citing Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1248 (10th Cir. 1973). Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975) is contrary. That court held:
Having failed to convince the trial court that the EIS was inadequate, the plaintiffs must now demonstrate that the lower court’s findings accepting the EIS as adequate and the decision to proceed as permissible were clearly erroneous.
I find no discussion in point in this circuit. When the adequacy of the EIS is questioned because of its alleged failure to properly discuss alternative solutions, their physical viability becomes crucial. That rests upon a question of fact not law and therefore to that extent the clearly erroneous rule should apply. The non-sea dumping alternatives, e. g., total land disposal, dredge soil farming, incineration, container disposal and island construction, were definitely discussed and rejected in the revised EIS.
. The so-called Acid Site referred to in the majority opinion, which has never been used as a dumping site in the past, was only brought to the Navy’s attention after the EIS was filed. In view of the objections of organized fishermen, it has been dropped from further consideration. However, two other sites in Block Island Sound are being studied as alternative locations in the event the New London site proves to be unsafe. The flexibility provided by the monitoring program is persuasive that the claimed insufficiency of past consideration of alternate proposals in the EIS exalts form over substance.