Full opinion text
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT McKINNEY, District Judge. This matter comes before the Court on cross-motions for summary judgment filed by the plaintiffs and the government defendants on September 21, 1999. At issue is whether the United States Army Corps of Engineers, Robert M. Walker, Lt. Gen. Joe N. Ballard, or Col. Harry L. Spear (collectively the “COE” or the “COE and its officers”), in issuing a permit to RDI/Caesars Riverboat Casino, L.L.C. (“Caesars”) for construction and operation of its riverboat gambling facility, violated the Administrative Procedures Act, 5 U.S.C. §§ 701-706 (“APA”), the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d (“NEPA”), the Clean Water Act, 33 U.S.C. §§ 1251-1387 (“CWA”), and section 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403 (“RHA”). The plaintiffs seek a ruling from the Court that will invalidate the permit issued to Caesars in February of 1998, remand the ease to the COE for further review, and enjoin the operation of Caesars’ riverboat casino and hotel resort complex until such review is completed. For the reasons fully expressed below, the Court GRANTS the defendant’s motion for summary judgment, and DENIES the plaintiffs’ cross-motion. I. FACTUAL AND PROCEDURAL BACKGROUND During the May 1994 primary election, the citizens of Harrison County, Indiana, voted by referendum to authorize a riverboat gaming operation on the county’s southern border along the Ohio River. Indiana law allows such a vote by citizens in the counties contiguous to Lake Michigan, the Ohio River or Patoka Lake. Ind. Code § 4-38-1-1; § 4-33-6-19. Before a gaming operation can be constructed, however, an abundance of regulatory procedures and state and federal agencies must be satisfied. One of the most prominent agencies, the Indiana Gaming Commission (the “IGC”), was established by the General Assembly to administer, regulate and enforce the state’s riverboat gambling system. Ind.Code §§ 4-33-3-1, 4-33-4-1. The IGC has the power to determine who is entitled to a riverboat gambling license and in what area the vessel may be located. Id. § 4-33-4-13(b). It makes this decision after consulting with the COE about the waterways that are navigable for purposes of riverboat gambling operations and the proper routes and stops of such vessels. Ind.Code § 4-33-4-10, 4-13. Only after the applicant secures the COE’s approval for the operation of a riverboat on a specific waterway may the IGC issue a license for such operation. Id. § 4-33-4 — 13(b); § 4-33-4-20 (voiding license if COE rescinds an approval). State law allows the IGC to issue a total of eleven licenses for riverboat gaming operations at any one time. Only five licenses, however, are available for operations along the Ohio River, with no more than one riverboat per county. Ind.Code §§ 4-33-6-l(a), 6-l(a)(5). Voter approval of riverboat gambling in the abstract must be obtained before a license may be issued for any riverboat to be docked in a county. Ind.Code § 4-33-6-19. Next, the county fiscal body must approve an ordinance permitting the docking of the riverboat in the county. Ind.Code § 4-33-6-18(c). Once those two steps are taken, potential riverboat owners must apply for and obtain one of the five Ohio River licenses. Part of that process involves convincing the IGC to select its project as the one that offers the most economic development and best serves the interests of the citizens of Indiana. One step along the way is to obtain a Certificate of Suitability from the IGC. In an attempt to earn one of these licenses, defendant Caesars, on April 1, 1996, applied to the COE for a permit under § 10 of the Rivers and Harbors Appropriations Act of 1899 (“RHA”), § 403 and § 404(b) of the Clean Water Act (“CWA”), 33 U.S.C. § 1344(b). App. to Am. Compl. for Decl. and Inj. Rel. (“Compl.”), Ex. 1, Statement of Findings and Env’l Assess, by Col. Harry L. Spear (“CoLSpear”), Commander and District Engineer, Louisville Dist. U.S. COE, Feb. 10, 1998, (hereafter “Findings”) at 1. The application requested authorization under the two environmental laws to construct a permanent mooring facility for a riverboat gambling vessel on the banks of the Ohio River near Bridgeport, in Harrison County (the “Townsend Site”). Findings at 1. Caesars’ proposed gambling vessel was a multi-level riverboat with a deck level dimension of approximately 105 feet by 450 feet long, intended to hold approximately 4,000 passengers and 400 staff members. Findings at 2. Indiana law prohibits any gambling on a riverboat while it is docked, with certain exceptions related to weather, water or traffic conditions. Ind.Code § 4-33-9-2. To enable the proposed riverboat vessel to cruise as required by Indiana law, Caesars needed to dredge approximately 28,000 cubic yards of material from the river bottom. Findings at 1. Because Kentucky law prohibits gambling and the state line is closer to the Indiana bank of the river at this point, Caesars also needed to excavate from the river bank along the cruising lane, construct mooring piles both in the water and on the bank, and stabilize a section of the bank to facilitate its operations. Id. at 1-2, 33, 64. Thus, the COE permit was a necessary step toward getting IGC approval for a riverboat gambling license for development on Caesars’ Bridgeport, Indiana, property. Nearly two years after receiving Caesars’ initial application, Col. Spear released his Findings, on February 10, 1998, which included an Environmental Assessment of Caesars’ proposed riverboat gambling project. Amend. Compl. Ex. 1, Findings at 69. Col. Spear had specifically found that the project would have no significant impact on the human environment, which is formally considered a “finding of no significant impact” (“FONSI”). Id; see 33 C.F.R. §§ 230.10-230,11 (allowing an environmental assessment instead of an environmental impact statement when there is a FONSI). Nevertheless, in response to the comments and additional information he had received from state and federal agencies and members of the public during the public interest review, Col. Spear added numerous special conditions to the permit to limit, prevent or mitigate the environmental impacts he identified in the environmental assessment. Findings at 47, 59-69. As a result, the RHA and CWA permit issued to Caesars for construction and operation of its project contained all of the standard conditions and some thirty-four special conditions. Id. at 69-73.. Because of the FONSI, Col. Spear determined that an Environmental Impact Statement (“EIS”), pursuant to § 102 of NEPA, would not be necessary. Id. at 58, 69. Section 102 expresses our national commitment to considering the environmental impact of actions and decisions by the executive agencies of the federal government. See generally, 42 U.S.C. § 4332. Specifically, the law requires that “all agencies of the Federal Government ... include in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible officer on — (I) the environmental impact of the proposed action....” 42 U.S.C. § 4332(2)(C) (emphasis added). By finding no significant impact from the project, the COE was authorized both by the statute and by Department of the Army regulations not to prepare an EIS before issuing a permit. See 33 C.F.R. § 230.10-11. After the permit was approved by the COE,- February 10, 1998, Caesars began construction below the Ordinary High Water Mark (“OHWM”). Construction above the OHWM had already commenced in November of 1997. Findings at 68. The project itself, located approximately ten miles south of the City of New Albany, Indiana, included the gaming vessel, as well as a 500 room hotel, an entertainment complex, a golf academy, parking for 3,200 vehicles, and an off-site eighteen-hole golf course. Administrative Record (“AR”), Vol. II, Tab 1, Traffic Study dated Dec. 1995 at 1 (“Traffic Study”); Findings at 2. The entire complex is located directly across the river from the City of Louisville, the most populous metropolitan area in the State of Kentucky^ and is accessed by Indiana State Road 111. Traffic Study at 1; Findings at 13. The land-side facilities also included a deep-water well and water treatment plant for potable water, which were to be deeded to the Town of Elizabeth upon completion, and a wastewa-ter treatment plant. Findings at 2, 67. These land-side structures constitute the elements of the project begun before the permit issued. Findings at 68. Throughout its review of Caesars’ permit application, the COE received many comments from the public, including the plaintiff organizations, Hoosier Environmental Council, Inc. (“Hoosier”), Protect Our Woods, Inc. (“POW”), and Protect Our River Environment (“PORE”). The members of these organizations are people interested in preserving and protecting the environment in Indiana, and they opposed construction of the riverboat gaming facilities on Caesars’ property. Hoosier is a not-for-profit corporation whose purpose is “to further public understanding of the value and need for the preservation of nature, natural resource conservation and recovery, and the promotion of a healthy and safe environment.” Pis.’ Opp. to Def. Caesars’ Mot. to Dis., Ex. 3, Hoosier’s Articles of Incorporation, Art. II; Def. Caesars’ Mot. to Dis., Ex. 3, Hoosier’s Bylaws, Art. II. Plaintiff, POW, a not-for-profit corporation formed in July of 1990, was established “to educate the public about environmental issues related to the Hoosier National Forest and other public and private forests, lands, and waters; to participate in the planning of the use and management of [those areas]; to monitor public and private activities on [those areas]; to conduct research and other scientific inquiry regarding the use and management of [those areas]; to participate in other local, regional, state, national, and global endeavors designed to promote a safe, sustainable environment; and to facilitate the interests of its members in pursuit of these purposes.” Pis.’ Opp. to Mot. to Dis., Ex. 5, POW’s Articles of Incorporation, Art. II. PORE is an unincorporated association comprised of “citizens and friends of Southeastern Harrison County.” Id., Ex. 4, October 1994 Resolution for the Creation of PORE. Its mission includes promoting “orderly, planned development that will improve the quality of life,” and opposing “any attempt to locate a gambling casino on the Ohio River” in their area of Harrison County. Id. PORE is associated with and functions as a committee of POW. Frey Dep. at 11-12. Hoosier, POW and PORE filed this action on May 6, 1998, nearly three months after the COE granted Caesars’ § 404 permit and six months after construction began at the site. They claim that the COE’s decision to issue the permit, without ensuring that the § 404 guidelines were met by preparing an EIS, or conducting an adequate public interest review, was in violation of NEPA, the CWA and the RHA. Several procedural and disposi-tive motions have been resolved in this matter. In March of 1999, the Court granted defendant Caesars’ motion to dismiss the claim against it based on the plaintiffs’ lack of standing to sue a beneficiary of challenged agency action. Caesars promptly filed a motion to reconsider that decision, or in the alternative, to intervene, followed by a motion for summary judgment on the merits filed June 18, 1999. Several months later, the plaintiffs and the COE filed the pending cross-motions for summary judgment. Recently, the Court denied Caesars’ motion to reconsider and its request to intervene in an order dated May 4, 2000. As a result of that decision, the Court will not address any issues raised in Caesars’ motion for summary judgment. Instead, it will consider and resolve the cross-motions for summary judgment pending between the plaintiffs and the COE. II. DISCUSSION A. Administrative Procedures Act Hoosier, POW and PORE filed this action under § 702 of the APA, a statute that provides a means for persons “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,” to obtain judicial review of that action. 5 U.S.C. § 702. The scope of that judicial review is delineated in § 706, which states: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall — • ‡ ‡ ‡ ‡ (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; (D) without observance of procedure required by law; 5 U.S.C. § 706(2). When it makes these determinations, the court must “review the whole record or those parts of it cited by a party.” Id. In an action for review of the grant of a § 404 permit, courts must examine the administrative record to determine whether the COE “made an arbitrary or capricious decision, abused its discretion, acted contrary to law or regulation, or lacked the support of substantial evidence.” St. Clair v. Secretary of Navy, 155 F.3d 848, 850 (7th Cir.1998). This standard is deferential, and a court “will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. In fact, “administrative decisions should be set aside ... only for substantial procedural or substantive reasons as mandated by statute ... not simply because the court is unhappy with the result reached.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Coun., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Nevertheless, a court is charged with responsibility for making sure the COE took a “hard look” at the potential environmental impact of any proposed project, and based its decision on a “rational consideration of relevant factors.” Van Abbema v. Fornell, 807 F.2d 633, 636 (7th Cir.1986). The COE is a federal agency whose actions may be reviewed under § 702 of the APA. Hoosier, POW and PORE, claiming to be aggrieved by the agency’s action, challenge the COE’s decision to issue a permit to Caesars in four basic areas. First, they contend that the analysis of alternatives conducted by the COE’s district engineer, Col. Harry L. Spear (“CoLSpear”), was arbitrary, capricious and contrary to the law. Second, they offer five reasons why the Court should find that Col. Spear did not comply with NEPA in conducting his assessment of the environmental impacts of the project. Next, they argue that his finding that the project would have no significant impact on the quality of the human environment was wrong as a matter of law, and that he should have conducted an EIS. Finally, they assert that, because of Col. Spear’s inadequate analyses of the environmental impacts and reasonable alternatives, the COE failed as a matter of law to conduct an appropriate public interest review. In response, the COE points to the thirty-seven volume administrative record, compiled over a twenty-two month period, arguing that it demonstrates how thoroughly the District Engineer reviewed and considered the information submitted by the proponents, opponents, consultants, and other agencies interested in this project. According to the COE, the record shows that, even though Caesars had obtained a site-specific Certificate of Suitability from the Indiana commission, the District Engineer’s review considered a range of alternative locations as well as project modifications. He also considered the reasonably foreseeable direct, indirect, and cumulative impacts of the riverboat project, including its potential effects on air quality, traffic, floodplain values, and adjacent mussel beds. Finally, the COE notes that the record is full of pre-existing approvals by state agencies relating to air, traffic, and water quality, which supports the COE’s conclusion that the project would have no significant impact on the human environment and that an EIS was unnecessary. Before addressing these contentions, the Court will briefly review the environmental laws being administered by the COE in deciding whether to grant a permit to Caesars. B. Environmental Laws and Regulations In the past, the COE’s regulation of certain activities in the nation’s waters primarily focused on protecting navigation. 33 C.F.R. § 320.1(a). Since the late 1960s, however, the COE has been charged with additional responsibility for considering the “full public interest by balancing the favorable impacts [of a given action] against the detrimental impacts, ... known as the ‘public interest review.’ ” Id. It does this through a process by which a permit is issued before certain types of activities can occur in connection with the navigable waters and waters of the United States. Id. § 320.1(b). The COE has delegated its decision-making authority to thirty-six district engineers and eleven division engineers, who administer the regulatory program in accordance with procedures described in the COE’s regulations. See 33 C.F.R. Pts. 325, 330. Col. Spear is the District Engineer for the district in which Caesars’ property is located. In administering the permit program, the COE “seeks to avoid unnecessary regulatory controls.” 33 C.F.R. § 320.1(a)(3). It also strives to reduce paperwork and delays, and “believes that state and federal regulatory programs should complement rather than duplicate one another.” Id. § 320.1(a)(4), (5). To that end, the COE “uses general permits, joint processing procedures, interagency review, coordination, and authority transfers (where authorized by law) to reduce duplication.” Id. § 320.1(a)(5). Like all federal agencies, the COE is required to implement the policies of National Environmental Policy Act of 1969 (“NEPA”) in its decision making. See 42 U.S.C. § 4332; 40 C.F.R. § 1507.1; see also Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979). Those policies include using all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. 42 U.S.C. § 4331(a). NEPA’s “twin aims” are to place upon agencies “the obligation to consider every significant aspect of the environmental impact of a proposed action,” and to “ensure that the agency will inform the public that it has indeed considered environmental concerns in its deci-sionmaking process.” Baltimore Gas, 462 U.S. at 97, 103 S.Ct. 2246. To these ends, NEPA contains certain “action forcing” provisions that compel federal agencies to consider “the environmental impact of their actions and decision-making.” Kleppe v. Sierra Club, 427 U.S. 890, 409, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). However, NEPA does not require an agency to “elevate environmental concerns over other appropriate considerations.” Baltimore Gas, 462 U.S. at 97, 103 S.Ct. 2246. Rather, it just requires the agency to take a “hard look” at environmental consequences before acting. Id. Thus, the COE must abide by NEPA regulations when undertaking its public interest review and consideration of alternatives to a proposed action. 40 C.F.R. § 1500.2 (federal agencies shall interpret and enforce the law in accordance with NEPA policies and regulations); § 1507.1 (federal agencies shall comply with NEPA regulations). NEPA’s requirements, however, are essentially procedural. Strycker’s Bay Neighborhood Coun., Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). The COE must also comply with regulations for issuing a § 404 permit under the CWA, a statute designed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); 40 C.F.R. § 230.2. Section 404 of the CWA governs the discharge of dredged or fill material into the waters of the United States. 33 U.S.C. § 1344(b). Pursuant to this section, the COE is responsible for issuing permits for such dredging or filling activities. See 33 U.S.C. § 1344(d). It also retains its historical duties under the RHA, the relevant portion of which, for purposes of this discussion, is the section that prohibits the construction of any structures in, or the excavation, filling, or altering of, any navigable waters in the United States without the recommendation and approval of the Chief of Engineers and the Secretary of the Army. 33 U.S.C. § 403; see also 33 U.S.C. § 1371(b). In general, the substantive statutes require the COE to focus on the project’s effect on overall water quality (the CWA) and its effect on navigation (the RHA). Upon receipt of Caesars’ application for a permit, the COE was obligated to evaluate the proposed Ohio River project using procedures and requirements outlined in the regulations construing NEPA and applying it to the COE, and those that implement the RHA and CWA through the COE. 40 C.F.R. §§ 1500 to 1508, 33 C.F.R. § 230, §§ 320-330. Essentially, the same process used for a § 404 permit under the CWA applies to the review of a permit under § 10 of the RHA, as both are subject to NEPA and COE regulatory process. See 33 U.S.C. § 1371; 33 C.F.R. § 320.2(b), (f). The COE’s own regulations describe the basic sequential steps for evaluating a permit application from start to finish. 33 C.F.R. § 325. The Court will discuss the various issues raised by the parties in light of these steps, considering NEPA’s procedural, and the CWA and RHA substantive requirements, as they pertain to resolving each issue. Generally, the steps include: 1. Acknowledging receipt of and reviewing for completeness the application form, 33 C.F.R. § 325.2(a)(1); 2. Issuing a public notice to advise all interested parties of the proposed activity for which the permit is sought and solicit comments and information necessary to evaluate the public interest, Id. §§ 325.2(a)(2), 325.3(a); 3. Considering all comments received in response to the public notice, making them part of the administrative record, and referencing them in subsequent actions on the application, Id. § 325.2(a)(3); 4. Seeking advice of and consulting with other federal agencies whose special expertise is invoked by certain comments, Id.', 5. If necessary, soliciting the applicant’s views or responses to the comments received, Id.; 6. Conducting an environmental assessment (“EA”), and, if necessary, preparing an environmental impact statement (“EIS”) pursuant to NEPA, Id. § 325.2(a)(4); 7. Determining the need for a public hearing pursuant to 33 C.F.R. § 327, Id. § 325.2(a)(5); 8. Determining, in light of the above and in accordance with the record and applicable regulations, whether the permit should be issued, Id. § 325.2(a)(6); 9. Preparing a Statement of Findings (SOF), or if an EIS has been prepared, a Record of Decision (ROD), on all permit decisions, which includes the District Engineer’s “views on the probable effect of the proposed work on the public interest including conformity with the guidelines published for the discharge of dredged or fill materials into waters of the United States,” Id.; 10. If a permit is warranted, determining the special conditions, if any, that apply to the permit and the duration of same, Id.; 11. If the final decision is to deny the permit, advising the applicant in writing of the reasons for the denial, Id. § 325.2(a)(7); 12. Publishing a list of permits issued or denied each month and distributing same to all interested persons, Id. At step 8, before deciding to issue the permit, the agency must consider whether there are practicable alternatives to an action that has an adverse environmental impact on water quality. 40 C.F.R. § 230.10(a). Likewise, it must consider the probable impacts of the proposed activity on the public interest, and balance those impacts against the reasonably foreseeable benefits before issuing a permit. 33 C.F.R. § 320.4(a)(1). As is clear from this summary of the COE’s tasks, the permit application process does not end when the COE makes a finding of no significant impact (FONSI). Van Abbema, 807 F.2d at 637. Instead, the COE must follow “two distinct, if parallel, guidelines in issuing a permit after a FONSI.” Id. First, it must “study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E) (NEPA alternatives requirement); see also 40 C.F.R. § 230.10(a) (EPA’s requirement pursuant to CWA); Van Abbema, 807 F.2d at 638. Second, the COE may not issue a permit until after it conducts a “general public interest review” to determine that the benefits outweigh the detriments of the proposal. Van Abbema, 807 F.2d at 638; 33 C.F.R. § 320.4(a). With respect to consideration of alternatives, the COE is required by regulations implementing the CWA to “examine practicable alternatives to the proposed discharge, that is, not discharging into the waters of the U.S.[,] or discharging into an alternative aquatic site with potentially less damaging consequences.” 40 C.F.R. § 230.5(c); see also 40 C.F.R. § 230.10(a) (no discharge of dredged or fill material allowed if there is a practicable alternative that would have less adverse impact on aquatic ecosystem). To be considered “practicable” an alternative must be “available and capable of being done after taking into Consideration cost, existing technology, and logistics in light of overall project purposes.” Id. § 230.10(a)(2). Similarly, after making a FONSI, the COE must evaluate the probable impacts, including indirect and cumulative impacts, of the proposed activity and its intended use on the public interest. 33 C.F.R. § 320.4(a). The COE weighs all of the comments, reports, and data collected in connection with the application, and then balances the “benefits which reasonably may be expected to accrue from the proposal” against “its reasonably foreseeable detriments.” Id. This balancing is performed with reference to twenty factors specified in the regulations. Van Abbema, 807 F.2d at 636 (citing 33 C.F.R. § 320.4(a)). Although the factors are to be balanced by the COE when determining whether to issue a permit, the specific weight of each factor depends on its “importance and relevance to the particular proposal.” 33 C.F.R. § 320.4(a)(3). In addition, “full consideration and appropriate weight” should be given to “all comments, including those of federal, state, and local agencies, and other experts on matters within their expertise.” Id. After balancing the overall positive and negative effects of a project, the COE is able to decide whether to issue the permit, and what conditions should be attached to it. Id., § 320.4(a). Generally, a permit should be granted unless the District Engineer specifically determines that “it would be contrary to the public interest.” Id. C. COE’s Environmental Assessment Having summarized the relevant procedural and substantive laws, the Court now turns to a consideration of whether the COE properly followed the process and applied the law in reaching its decision to issue a § 404 permit to Caesars. As an initial matter, the Court notes that COE regulations describe the issuance of a permit as an action that normally requires only an EA, and not necessarily an EIS. 33 C.F.R. § 230.7(a). In any case, the purpose of an EA “is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an environmental impact statement.” River Rd. Alliance v. Corps of Eng. of U.S. Army, 764 F.2d 445, 449 (7th Cir.1985), cert. denied, 475 U.S. 1055, 106 S.Ct. 1283, 89 L.Ed.2d 590 (1986). Thus, preparation of an EA leads either to a FONSI, or to a finding that an EIS is required, in which case additional time and expense will be incurred. Rhodes v. Johnson, 153 F.3d 785, 788 (7th Cir.1998). In this case, the EA led to a FONSI. Caesars’ application was filed with the COE on April 1, 1996, but was not complete until late July 1996, following which the COE issued a public notice of the completed permit application on August 13, 1996. AR, Vol. Ill, Tab. 27, Aug. 13, 1996 Public Notice. That notice began a comment period that ended on September 11, 1996. Id. On September 23, 1996, the COE issued notice of a public hearing to be held on October 23, 1996, in Lanesville, Indiana. Id. The COE invited all interested parties to attend the hearing in person or by representative, and to make their views known. Id. Alternatively, written statements could be submitted by mailing them to the COE by November 7, 1996, and all statements, oral or written, would be presented at the hearing, become part of the administrative record, and be available for public review. Id. On October 18, 1996, the COE issued notice of the first set of project modifications in response to comments that had been received earlier. Id., Oct. 18, 1996, Public Notice. Another comment period followed and ended on November 7,1996. Id. The public hearing was held on October 23, 1996, and a transcript of the hearing was made a part of the administrative record. AR, Vol. V, Tab 60, Hrg. Trans. Public notice of a second set of project modifications was issued on February 11, 1997, after which another thirty-day comment period ensued until March 13, 1997. AR, Vol. Ill, Tab. 27. Numerous comments were received by the COE during this comment period, many of which asked for a second public hearing. Id., May 29, 1997, Public Notice. Finding that the “public’s concerns pertaining to the modification ... have been properly identified through the comment period and sufficient detail was obtained to adequately assess these specific issues,” Col. Spear denied the requests for a second public hearing. Id. The final public notice on March 2, 1998, announced that a Department of the Army Permit was issued to Caesars on February 10, 1998, and it listed all of the special conditions attached to the permit. Id., Mar. 2, 1998, Public Notice. The COE’s corresponding statement of findings, environmental assessment and FON-SI were included in the administrative record. AR, Vol. XVI, Tab 227. Based on this review of the administrative record, the Court is satisfied that the COE followed the proper procedures with respect to steps one through three, seven, and ten through twelve, as described above. The disputes between the parties in this action primarily revolve around whether the District Engineer properly followed NEPA procedures and all relevant laws in connection with his decision-making at steps four through six, with particular emphasis on step six, and at steps eight and nine. The Court will focus its analysis on these steps of the administrative review process and the decisions made by the COE at each point. 1. Indirect Effects First, the plaintiffs argue that the COE failed to identify and evaluate the reasonably foreseeable indirect effects of the proposed project. They point to a letter from the United States Fish & Wildlife Service (“USFWS”) asking the COE to conduct an EIS because of the “ecologically sensitive nature of the project area and the potential indirect impacts that would result from siting of such a large development'in an essentially undeveloped rural area.” AR, Vol. X, Tab 108, Letter to Col. Spear dated April 11, 1997. In addition, they cite a letter from the EPA, dated more than two months after the § 404 permit was granted, which allegedly concludes that the EA was “legally deficient” because of its failure to examine indirect effects. Pis.’ Brf. in Supp. of Mot. for Sum. J. (“Brf. in Supp.”) at 24. However, this letter is not part of the administrative record on which the COE based its decision and should not be considered during a judicial review of that decision, unless the information is necessary to explain or clarify agency action. See Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir.1986) (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Edüd 643 (1985)); Northern Crawfish Frog v. The Federal Highway Administration, 858 F.Supp. 1503, 1508 (D.Kan.1994) (judicial review focuses on administrative record existing before the agency). The EPA letter offered by the plaintiffs here does not clarify or explain the COE’s administrative decision, which means this Court should not consider it in this review. The COE has moved to strike this exhibit and. that motion is hereby GRANTED. Even if the letter were to be considered, however, it would not lend much assistance to the plaintiffs. It appears that the EPA wrote the letter thinking it was providing feedback to the COE prior to the issuance of a permit while the administrative review process was ongoing. Once the permit was awarded, the EPA could have sought review of Col. Spear’s decision at a higher level of the COE, or exercised its authority to veto the permit entirely under 33 U.S.C. § 1344(c). Because it did not take this action, the Court finds it reasonable to infer that the EPA might have tempered its feedback had it known the permit had already issued. See Hill v. Boy, 144 F.3d 1446, 1448 (11th Cir.1998) (noting that EPA did not seek to overrule the COE’s issuance of a § 404 permit); Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1525 (10th Cir.1992) (EPA may veto the issuance of a permit that will have an “unacceptable adverse effect,” noting that was not-done); James City County v. United States Env. Prot. Agcy., 955 F.2d 254, 260 (4th Cir.1992) (holding that case should be remanded for EPA to consider whether project’s environmental effects alone justified veto of permit). The EPA is authorized to veto a § 404 permit whenever it “determines that the discharge of dredged or fill material is having or will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, ... wildlife, or recreational areas.” 40 C.F.R. § 231.1(a) (quotations omitted). In light of this veto authority, it is difficult to read the EPA’s letter as condemning the COE’s review as “legally deficient,” especially when the EPA took no subsequent action to overrule or otherwise challenge the COE’s decision. Moreover, the Court has reviewed the letter cited by the plaintiffs and at no point does the EPA conclude that the COE’s EA is legally deficient for any reason. Instead, the EPA stated in the letter that its purpose for writing was to share its “comments and concerns regarding the EA and the proposed river boat project.” Pis.’ Ex. C, Letter to Col. Spear dated April 15, 1998. In its conclusion, the EPA recommended that the COE “give further consideration to the issues raised in this letter,” and it invited the COE to meet with EPA staff to discuss those issues. Id. Given the cooperative tone of this feedback, the Court finds it unlikely that, had it known the permit had already been granted, the EPA would have accused the COE’s assessment of being legally deficient. Such a missive would be inconsistent with the EPA’s subsequent conduct of not taking any action to garner further review of the permit application or to veto it. Thus, the plaintiffs’ interpretation of the significance of this letter is unreasonable and would not have supported their argument that the COE was unreasonable with regard to its assessment of the indirect effects of the project. Indirect effects are those effects that “are caused by an action and are later in time or farther removed in distance but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b). For example, the direct effects of the COE’s action of granting a § 404 permit to Caesars, is that Caesars would begin to dredge the Ohio River to form a protected mooring basin and widen the cruising lane for its riverboat gaming vessel. Another direct effect is that Caesars would be eligible for a gaming license from the State of Indiana for its riverboat. One could even say that the actual operation of the riverboat constitutes a direct effect of the grant of a permit. The indirect effects, on the other hand, would include construction of a hotel, pavilion, golf academy, golf course, and parking and utility facilities. These indirect effects are both foreseeable and were thoroughly analyzed by the COE prior to issuance of the permit. See Findings at 47-54. In addition, the COE evaluated the potential environmental effects of these foreseeable indirect effects of the grant of the permit. The Findings contain comments, responses from the applicant, summaries of reports and of interagency meetings, and the COE’s findings about the historical and archaeological effects of the entire project, its effect on air quality, aesthetics, noise levels, water supply, wetlands, benthic community, fishery areas, wildlife areas, rare and endangered species, water quality, recreational areas, and the general ecology of the area. Id. at 47-58. After considering all of these effects, in light of his experience, knowledge, and training, and considering the comments and advice received from other agencies, the District Engineer found that the foreseeable development that would follow a grant of the § 404 permit “would not have a significant impact on the human environment.” Id. at 58. His decision contemplated both the proposed work and the mitigation features added to the project. Id. The COE is in the best position to make this evaluation, because it involves factual disputes, “the resolution of which implicates substantial agency expertise.” See Marsh v. Oregon Nat. Res. Com., 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The District Engineer heard live testimony and was able to gauge the intensity and sincerity of opinions expressed. See River Road Alliance, 764 F.2d at 451. The COE “also has a fund of knowledge and experience regarding the [river] that judges of a federal court ... cannot match.” Id. Moreover, agencies are not required to hold a public hearing before issuing an EA, so when they do their “decision is entitled to greater weight.” Id. For NEPA to require consideration of a particular effect (such as the impact of secondary development), a court “must look at the relationship between that effect and the change in the physical environment caused by the major federal action at issue.” Metropolitan Edison v. People Against Nuclear Energy, 460 U.S. 766, 773, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). Even if there is a sufficient “string of causation” to confer standing on the plaintiffs, “it does not necessarily follow that such a highly attenuated chain of causation ... would lead to injuries cognizable under NEPA.” Presidio Golf Club v. National Park Ser., 155 F.3d 1153, 1163 (9th pir.1998). Instead, NEPA requires “a reasonably close causal relationship between a change in the physical environment and the effect at issue.” Metropolitan Edison, 460 U.S. at 774, 103 S.Ct. 1556. Without some specific document, report, or comment in the record to call the COE’s attention to foreseeable secondary development, its decision not to consider such effects cannot be found arbitrary, capricious, or otherwise unreasonable. The plaintiffs argue that because the “fundamental purpose” of the riverboat casino is to “stimulate significant economic development over a large geographic area,” the COE was obliged to analyze the environmental effects of such potential secondary development in light of this purpose. Pis.’ Brf. in Supp. at 25. The Indiana law that established a gaming commission provided that one of the duties of the IGC is to “select among competing applicants the applicants that promote the most economic development in a home dock area....” Ind.Code § 4-33-4-1(a)(5). Further, it states that in granting a license, the IGC “may give favorable consideration to ... [applicants presenting plans that provide for significant economic development over a large geographic area.” Id. § 4-33-6-7(a). According to the plaintiffs, these passages “make clear that the fundamental purpose of the proposed casino complex is to stimulate significant economic development over a large geographic area.” Pis.’ Brf. in Supp. at 25. Considering the passages in context, however, the Court notes their placement in the chapter governing the powers and duties of the Indiana Gaming Commission, not in the chapter containing “General Provisions” regarding the issuance of gaming licenses. This fact weakens the argument regarding the fundamental purpose of the casino. In addition, the first passage actually states two criteria for selecting applicants, one regarding economic development, and a second one requiring the IGC to select the applicants “that best serve the interests of the citizens of Indiana.” Ind.Code § 4-33-4-l(a)(5). Presumably, those interests include environmental, aesthetic, social, land use, population density and growth, and other related interests. Further, with respect to the second passage, the Court notes that it is permissive, not mandatory, allowing the IGC to “give favorable consideration” to plans that provide for significant economic development. A clue as to the type of “economic development” envisioned by the legislature in connection with the casinos is found in a subsequent provision of this statute. Referring to the issuance of a license for operation of a riverboat in a large city, the statute calls for the applicant to “construct or provide for construction of an approved hotel” or “cause economic development” having an impact greater than would occur with construction of an approved hotel. Id. § 4-33-6-7(b). At most, these passages support the foreseeability of the type of economic development identified during the COE’s review of Caesars’ application, such as the hotel, pavilion, golf academy and golf course. They do not provide any reason for the Court to find arbitrary or capricious the District Engineer’s decision that other secondary development was not reasonably foreseeable. The plaintiffs combine the “fundamental purpose” they derived from the statute’s provisions with a statement in the COE’s Findings relating to the scope of analysis Col. Spear was undertaking, to show that he completely ignored secondary effects. The District Engineer defined the scope of his analysis as including all of the construction activities proposed by the applicant, including the off-site golf course. He stated, however, that he would “not speculate as to any secondary construction proposals by unknown third parties at unknown locations, for unknown purposes or their impacts within this NEPA document because they are not within the scope of [his] analysis.” Findings at 46. Seizing on the term “speculate” in that statement, the plaintiffs cite cases in which courts have frowned on using the excuse that an effect is too speculative as a reason for not considering secondary effects. They argue that it was similarly impermissible for the COE to use it as an excuse here to ignore the potential secondary development effects. In Scientists Institute for Pub. Inf. v. A.E.C. (“SIPI”), the court wrote that an “agency need not foresee the. unforeseeable, but by the same token neither can it avoid drafting an impact statement simply because describing the environmental effects of and alternatives to a particular agency action involves some degree of forecasting.” 481 F.2d 1079, 1092 (D.C.Cir.1973). The plaintiffs emphasize a subsequent passage in which the court summed up the “basic thrust” of agency responsibility under NEPA, which is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities ... by labeling any and all discussion of future environmental effects as “crystal ball inquiry.” Id. The context of this expansive concluso-ry language, however, is a review of the Atomic Energy Commission’s refusal to issue a “detailed statement” of the significant impact its “Liquid Metal Fast Breeder Reactor” program would have on the human environment. Id. at 1082. The Commission declined to do so because its program was still in the “research and development stage,” with no specific plan of implementation that would significantly affect the human environment. Id. The SIPI court disagreed with the Commission’s reasoning for not preparing a detailed statement of environmental effects. It held that an EIS was necessary, considering the magnitude of the ongoing federal investment in this program, the controversial environmental effects attendant upon future widespread deployment of breeder reactors should the program fulfill its present expectations, the accelerated pace under which this program has moved beyond pure scientific research toward creation of a viable, competitive breeder reactor electrical energy industry, and the manner in which investment in this new technology is likely to restrict future alternatives.... Id. Unlike the court in SIPI, this Court is not faced with a controversial new technology that is being developed by the government at tremendous expense, which, if successful, could become so widespread that it would affect the entire country. Instead, the issues here arise in the context of a federal agency regulating private activity that might affect public property. The indirect effects caused by the issuance of a § 404 permit to Caesars, which would allow it to construct a mooring basin and cruise lane for its riverboat casino, become increasingly tenuous and speculative as the inquiry proceeds outward from the core project. As previously discussed, the COE reviewed many indirect effects and environmental consequences of the grant of a permit, but refused to consider the environmental effects of any commercial development that might be spawned by the presence of the riverboat. In essence, the District Engineer found that such development was not reasonably foreseeable. Rather than direct the Court to evidence in the record that would show that the District Engineers’ finding was arbitrary or capricious, such as evidence of proposed secondary commercial development in the area, the plaintiffs merely point to the stated aspirations of the riverboat gaming law passed by the state legislature. This is not enough to meet the plaintiffs’ burden of showing the agency’s decision was arbitrary or capricious. The COE’s decision that it would not consider the environmental effects of possible secondary development that might occur in this rural area as a result of the resort’s presence is not arbitrary or capricious. Rather, it complies with the rule of reason that governs the application of NEPA to any federal action. Marsh, 490 U.S. at 373, 109 S.Ct. 1851 (standard governing agency decision is “rule of reason”); New York v. Kleppe, 429 U.S. 1307, 1310, 97 S.Ct. 4, 50 L.Ed.2d 38 (1976) (in evaluating the adequacy of an EIS, courts enforce requirement that agency take a “hard look” at environmental effects, tempered by “a practical rule of reason”); Transmis sion Access Policy Study Grp. v. Federal Energy Regulatory Comm., — F.3d-, -, 2000 WL 762706, *65 (D.C.Cir.2000) (“We evaluate agency compliance with NEPA under a rule of reason standard”). In another case cited by the plaintiffs as relevant to this issue, the court rejected a state agency’s position that “the uncertainty of development in the ... area makes the ‘secondary’ environmental effects of the [project] too speculative for evaluation.” City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir.1975). However, this statement was made in the context of reviewing an agency refusal to issue an EIS for a “proposal to build a major interchange in an agricultural area near the edge of urban development, and the purpose of the project [was] to connect a freeway with a road which does not yet exist.” Id. The agency’s suggestion that it was possible that no development would result from the interchange taxed the court’s credulity, in light of the purpose of the project and the administrative record. Id. A document in the record, prepared by the state and federal highway agencies, had specifically described the area to be accessed by the interchange as one in which local governmental and private entities were planning a research and light industrial development, and as one “about to undergo a rapid change to urban development.” Id. at 669, n. 8. Moreover, the stated purpose for the interchange was to “provide direct and safe access between the educational, medical, agricultural, and engineering facilities of the University [of California at Davis] and the proposed industrial research center.” Id. It was in the context of these facts and circumstances that the Davis court rejected the agency’s decision that the “uncertainty of development” made it “too speculative” to evaluate the secondary environmental effects of the interchange project. Id. at 676. The plaintiffs here point to a specific portion of the Davis court’s ruling as support for their contention that the COE should have evaluated environmental effects of secondary development in this case. The court wrote, “[t]hat the exact type of development is not known is not an excuse for failing to file an impact statement at all. Uncertainty about the pace and direction of development merely suggests the need for exploring ... alternative scenarios based on these external contingencies.” Id. Again, the two cases are entirely different. It is the facts contained in the administrative record that govern the breadth of the agency’s consideration of secondary impacts of a project. The COE is entitled to rely on these facts, as well as its own experience and review of the site and the proposal, to decide that secondary residential and commercial development in the vicinity of the riverboat is not reasonably foreseeable. Unlike the context of a proposed interchange on a major freeway, sited near an urban area, there are no facts in this record that would induce a reasonable person to foresee the type of development suggested by the plaintiffs. In the interchange context, the purpose of the project was to facilitate access to a previously inaccessible area, and it was reasonable to foresee that such access would lead to development of some type. The agencies themselves admitted that such development had been proposed and was predictable. City of Davis, 521 F.2d at 669, n. 8. In contrast, the riverboat casino project’s purpose is to provide an attractive resort destination to which peo-pie would travel on existing roads. This does not automatically lead to the conclusion that, once there, they will build homes, retail stores and service stations. Rather, the project’s purpose is more consistent with the scenario of people being attracted to the casino for temporary entertainment, and then leaving. This is a reasonable assessment for the District Engineer to make. No facts were presented to the COE that would make this assessment unreasonable, nor were there any making the likelihood of secondary development reasonably foreseeable. Thus, the COE’s consideration of the indirect effects of the riverboat project was not arbitrary or capricious. The plaintiffs also point to a USFWS letter that recommends the COE develop an EIS for the project, and reports receiving “extensive biological information” from an Indiana University Southeast biology professor. AR Vol. IX, Tab 85, Letter to Col. Spear dated Jan. 15, 1997. According to USFWS, the “biological information” indicates there is a “high potential for secondary (indirect) impacts on the surrounding ecosystem from additional development which is likely to be spawned by this project.” Id. The fact that other agencies disagree with the COE’s decision about whether to conduct an EIS or to issue a permit does not mean the decision was wrong. See Akiak Native Community v. United States Postal Service, 213 F.3d 1140, 1146-47 (9th Cir.2000); California Trout v. Schaefer, 58 F.3d 469, 475 (9th Cir.1995); Roanoke River Basin Assoc. v. Hudson, 940 F.2d 58, 64 (4th Cir.1991) (citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). NEPA only requires that the COE consider other agencies’ concerns, address them, and explain why it found them unpersuasive. Id. The COE did consider the USFWS’ comments, but found them “contradictory” because in the same letter the USFWS stated that “there would be only minor adverse impacts to resources within their area of expertise.” Findings at 69. Col. Spear also noted that the USFWS kept expressing concern about secondary development and not secondary impacts, and that the COE’s concern is with secondary impacts that are foreseeably caused by the grant of a permit. Id. Under the circumstances here, the COE found that secondary development was too speculative, (i.e. not reasonably foreseeable), to warrant any further consideration. At no point did the USFWS, or anyone else whose comments are contained in the record, ever explain why Caesars’ project is likely to spawn a large amount of future secondary development. Instead, the plaintiffs point to general statements in the record, such as Caesars’ response that “the resort will have a dramatic economic impact on southeastern Indiana.” Findings at 45. Even taken out of context, this statement does not explain why it would be reasonable to foresee a large amount of secondary development in the area. Considered in context, however, the comment reveals its actual meaning. Caesars explained the statement with reference to the economic impact of its project alone, specifically noting that “a sizable number of job applications have been submitted by residents in Floyd and Harrison Counties.” Id. This statement implies that the wages from the project will go to Indiana workers, as opposed to those of Kentucky. The fact that the applications were from people who already resided in the affected counties explains why the project was expected to put more money in the pockets of residents of Southeastern Indiana, which presumably would have a “dramatic economic impact” on the area. However, it says nothing about why there would be an increase in residential or commercial development in the area. The plaintiffs next cite a study performed by the Indiana University Center for Urban Policy and the Environment (“Center for Urban Policy”) containing statistics about expected numbers of patrons for the riverboat, the number of jobs that might be created, and various other projected fiscal and economic impacts. AR, Vol. VIII, Tab 65, Undated Study. It predicted an average annual attendance of 4,371,400 people, generating average annual adjusted gross gaming receipts of $229,488,000.00. Id., Study at 3. The study also projected 2,310 temporary jobs in construction and 3,095 permanent jobs as a result of the casino. Id. at 8. As with any economic model, the study conducted by the Center for Urban Policy made its predictions and projections based on certain assumptions. In fact, it cautioned the reader that the revenue estimates “are appropriate for use only in the assessment of riverboat gaming applications.” Id. at 15, 32. It also stated that the analysis would be accurate as long as the assumptions were fulfilled. Id. at 15. Upon review, the Court notes that the study assumed that consumers would spend additional money, rather than “switch their spending to gaming, away from other activities.” Id. at 16. Other assumptions on which the analysis was based included an assumption that the entire regional impact of the casino would occur in Harrison County, that a certain percentage of the employees for the riverboat would migrate from outside the local area and some would relocate, that those relocating would belong to households like those already existing in the county and distributed as population is already distributed in the county, that spending by local government on new residents would be the same as average spending per existing resident, and that relationships between income, tax rates and tax revenues would stay the same. Id. at 16-17. These assumptions do not provide evidence that would make secondary development foreseeable. Perhaps of more relevance, however, is the study’s review of local economic development for the Caesars’ project, which noted that Harrison County is located in the Louisville Metropolitan Statistical Area, and it has a “good strong economy, with manufacturing and tourism as key industries.” Id. at 42. Caesars’ site is located adjacent to the Ohio River approximately eight and one-half miles from the bridge between Louisville and New Albany. Id. It is accessible from the interstate system through New Albany. Id. As a result, the study found that “riverboat patrons may have little impact on Corydon or Harrison County,” as “visitors will have to purposely pursue tourism and business opportunities within Corydon and Harrison County.” Id. Rather than supporting the plaintiffs’ contentions that the District Engineer ignored potential secondary development effects allegedly suggested by this study, it would seem to support the opposite view. The District Engineer’s decision to not speculate about secondary development caused by the riverboat is reasonable in light of this study. Another indirect effect that the COE allegedly failed to consider, according to the plaintiffs, is the effect of gambling itself, which is not only significant, but also “overwhelmingly negative.” Pis.’ Brf. in Supp. at 25. Citing a letter from the Kentucky Resources Council, Inc., and one of its attachments, the plaintiffs suggest that the COE must consider the negative social impacts of gambling. AR Vol. X, Tab 101, Letter dated March 19, 1997, Att. 1. The letter refers to the “environmental justice” aspects of the permit at issue, and cites a research survey conducted by the Department of Economics of the University of Illinois, which found that the “social costs of expanded casino gambling” exceed the “consumer benefits from closer proximity to casinos.” Id., Abstract. The survey’s conclusion is that “casino gambling fails a cost-benefit test.” Id. Although the COE reply brief makes no mention of this evidence or its significance, the Court notes that the District Engineer specifically stated that he would not “consider whether gambling in Harrison County, Indiana, is desirable.” Findings at 46. He then explained that decision by noting The issue as to whether gambling should be allowed in Harrison County has been decided by the voters and the [Indiana Gaming Commission]. The Indiana General Assembly legalized riverboat gambling in the State and the passage of the local referendum indicates that a majority of the voting public in Harrison County favors gambling. Consideration of the gambling issue is not within my purview and is beyond the scope of the Corps authority in its evaluation of this permit application. Findings at 46. As the Court has already noted, in administering the permit program, the COE “seeks to avoid unnecessary regulatory controls.” 33 C.F.R. § 320.1(a)(3). It also strives to reduce paperwork and delays, and “believes that state and federal regulatory programs should complement rather than duplicate one another.” Id. § 320.1(a)(4), (5). The State of Indiana has made the policy decision that i