Full opinion text
DECISION AND ORDER SKRETNY, District Judge. TABLE OF CONTENTS INTRODUCTION.554 BACKGROUND.554 I. Applicable Statutes.554 II. Buffalo Inner Harbor Project.556 III. Archeological Exploration At The' Inner Harbor Site.557 IV. ”No Adverse Effect” Determination.558 V. Stage III Excavations.559 DTSCUSSTON. KfiO I. Plaintiffs Standing. Gi II. Scope Of Review And The Record Subject To Review. Gi Preliminary Injunction Standard Of Proof. Gi A. Likelihood of Success: Plaintiffs Arguments_ Gi 1. Definition of Project Goals. Gi 2. Archeology Exception. Gi 3. Supplemental EIS. Gi Irreparable Harm. B. 1. Harm to Members’ access to Commercial Slip Wall. “-3 2. Harm to the Proposal to Incorporate Commercial Slip Wall in to a Functioning Slip. Cu CO 3. Harm to Other Resources. Cn Gi TN SUMMARY . ■■■3 3i CONCLUSION AND ORDER. .577 ABBREVIATIONS AND ACRONYMS The following abbreviations and acronyms are used in this Decision: APA — Administrative Procedure Act, 5 U.S.C. § 701, et seq. EQRA — Environmental Quality Review Act NEPA — National Environmental Policy Act, 42 U.S.C. § 4321, et seq. NHPA — National Historic Preservation Act, 16 U.S.C. § 470, et seq. § 106 of NHPA — (§ 106, process— when agency consults with SHPO over proper treatment of historic resources). § 4(f) § 4(f) of the National Transportation Act, 49 U.S.C. § 303 EIS — Environmental Impact Statement FEIS — Final Environmental Impact Statement SEIS — Supplemental Environmental .Impact Statement SEQRA — State Environmental Quality Review Act, New York Environmental Conservation Law, § 8-0101, et seq. SHPO — State Historic Preservation Office National Register — National Register of Historic Places “Criterion A” and “Criterion D” — criteria for inclusion in the National Register, found at 46 C.F.R. § 60.4, note. “Stage IA,” “Stage IB,” “Stage II” and “Stage III” — stages in archeological investigation of the Inner Harbor Project site, conducted by firm of Warren Barbour, Ph.D. ESDC — Empire State Development Corporation (d/b/a New York State Urban Development Corporation) FTA — Federal Transit Administation NFTA — Niagara Frontier Transit Authority NYSTA — New York State Thruway Authority OPRHP — Office of Parks, Recreation & Historic Preservation SUNY — State University of New York INTRODUCTION Plaintiff Preservation Coalition of Erie County (Preservation Coalition or Coalition) has moved this Court for an Order preliminarily enjoining Defendants from engaging in construction at a site identified as the Buffalo Inner Harbor Project. The Coalition claims that construction at the Inner Harbor Project site threatens the imminent destruction of historic resources that are of great local and national significance. It claims that Defendants violated Federal and State laws that require consideration of the impact of the Project on historic resources and planning to mitigate harm to those resources. This Court in its prior decision rendered on February 23, 2000 in this case, determined that the administrative record was insufficient to enable the Court to determine the issues essential to deciding the Preliminary Injunction Motion, and that the Coalition would therefore be permitted to call three witnesses. (Item no. 30, at 17, 20-21.) Those three witnesses, David Gerber, Ph.D., Daniel Rogers and Robert Z. Melnick, Ph D., testified on February 29, 2000. This Court then granted Defendants’ request to call a rebuttal witness, Robert D. Kuhn. Ph.D., who testified on March 6, 2000. Now, upon the parties’ submissions and the testimony and evidence before this Court, Plaintiffs Motion for a Preliminary Injunction is granted in part and denied in part for the reasons stated in the discussion that follows. BACKGROUND I. APPLICABLE STATUTES Preservation Coalition asserts claims under three Federal statutes which provide for protection of environmental, and particularly historic resources. The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. requires the preparation of an Environmental Impact Statement (EIS) whenever a federally funded construction project significantly affects the quality of the environment. The EIS serves NEPA’s “action forcing” purpose in two important respects. It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in [ ] the decision making process. Publication of an EIS ... gives the public the assurance that the agency has indeed considered environmental concerns in its decision making process and, perhaps more significantly, provides a springboard for public comment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989) (Internal citations omitted.) In an EIS a “responsible official” must describe the environmental impact of the project, including any unavoidable adverse effects, and consider alternatives that might meet project goals while minimizing harm to the environment. 42 U.S.C. § 4332(2)(C). NEPA is essentially a procedural statute. It requires that an agency take a “hard look” at environmental consequences of its projects, but does not elevate environmental concerns over other priorities, or prohibit a course of action that may harm resources, so long as the agency justifies its decision. Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043, 1050 (2nd Cir.1985). The National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq. requires that any federally funded undertaking “take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register” of Historic Places. 16 U.S.C. § 470f. The State Historic Preservation Office (SHPO) is charged with recommending whether to include a resource in the National Register.- 36 C.F.R. § 60.3(m). Any agency whose project impacts resources that may be eligible for the National Register must consult with SHPO to determine whether National Register criteria are met, and, if so, whether the project will adversely affect the resources. 36 C.F.R. § § 800.4, 800.5. If the project is likely to have an adverse impact on a protected historic resource, SHPO must be consulted regarding alternative approaches to avoid or mitigate that adverse effect. Id. § 800.6. NHPA, like NEPA, is an essentially procedural statute, which requires planning to avoid or mitigate harm to historic resources, but does not prohibit projects simply because they are likely to cause such harm. Natural Resources Defense Council v. City of New York, 672 F.2d 292, 299 (2nd Cir.1982). Since historic resources are a component of the environment protected by NEPA, Preservation Coalition v. Pierce, 667 F.2d 851, 858 (9th Cir.1982), a Federally funded project impacting such resources will be subject to two parallel review processes, the EIS process under NEPA and the consultation process required by NHPA. Under § 4(f) of the Transportation Act, 49 U.S.C. § 303(c). Federal funding of a transportation project that adversely effects a historic site cannot be approved unless the agency shows that there is no feasible and prudent alternative to the use of the site and that it has done all possible planning to minimize harm to the site. § 4(f) protects resources eligible for the National Register. However § 4(f) does not apply to an archeological resource that is “important chiefly because of what can be learned by data recovery and has minimal value for preservation in place.” 23 C.F.R. § 771.135(g)(2). Where NEPA and NHPA require only that a project consider alternatives that mitigate harm to historic resources, § 4(f) prohibits use of a historic site unless its conditions are met. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). Since Federally funded transportation projects are often subject to NEPA’s procedural requirements and the substantive requirements of § 4(f), an agency implementing such a project may opt to document its efforts to comply with § 4(f) in the Project’s EIS. Thus, the FEIS in the present case addresses § 4(f) requirements with regard to the Inner Harbor Project. II. BUFFALO INNER HARBOR PROJECT The Inner Harbor Project, a component in a broader scheme for developing Buffalo’s waterfront, incorporates a variety of improvements on a tract of land that adjoins the waterfront. New York State Urban Development Corporation, doing business as Empire State Development Corporation (“ESDC”), as the lead agency with regard to environmental review, prepared the Final Environmental Impact Statement (“FEIS”) for the Inner Harbor Project. The goals of the Project are: 1) enhancement of access to and transportation options at the Inner Harbor; 2) encouragement of recreational use of the Project site and private development of adjoining properties; and 3) enhancement of the attractiveness of the location. (FEIS, at ES-4, 5.) The FEIS addresses a range of environmental issues, including land use, socioeconomic factors, coastal zone management, navigable water, air quality, noise hazardous materials and the visual quality of the setting. (Id., at i— iv.) However, Preservation Coalition’s claims focus on the Project’s impact on cultural and historic resources. The Project site is bounded by Main Street, Hanover Street, Pearl Street, Marine Drive, Marine Court and the Buffalo River. According to Preservation Coalition, it is one of the most significant historic locations in Western New York. Historically, the Erie Canal terminated at the Buffalo River within the Inner Harbor project site and was connected to the river by two canal slips known as the Commercial Slip and the Prime Slip, both of which are located within the Inner Harbor Project site. (Complaint ¶ 22.) The site was the locus of much of the earliest commercial, residential and industrial development in Buffalo’s history. It was a critical juncture in the route that commercial vessels took from the Great Lakes to central and downstate New York via the Erie Canal and a jumping off point for much 19th Century migration to mid-western United States via the Great Lakes. (Item no. 2, Tielman aff. ¶ 27.) Preservation Coalition asserts that a variety of resources exist intact at the Project site, including structural remains of the Commercial Slip, and Prime Slip, historic streets such as Lloyd and Hanover Streets, side-walks and foundation remains of buildings and other structures bordering on those streets. It argues that these resources can and should be preserved in place. (Complaint ¶ 24.) The FEIS acknowledges the historic significance of the Project site, noting that: [t]he proposed site of the Inner Harbor project has a rich and complex history which embraces the entire history of the City of Buffalo, including early habitation by a number of Native American groups, European entry into the region in the 17th century and eventual occupation of Western New York in the 18th century. The greatest level of activity on the site occurred in the middle and late 19th century, with the construction of an extensive canal system that included the Erie Canal, a network of local feeder canals and slips, and the development of Buffalo as a transshipment center for grains and other goods. Early maps and photographs of the project site depict a complex system of canals, slips, and streets, and an active and varied warehousing area. (FEIS, 6^4 to 6-5.) However, although Defendants agree that the site is historically significant, they vigorously contest the Coalition’s assertion that there are extensive historic resources extant at the site. Thus, Warren Barbour, Ph.D., an archeologist with the firm of Dean and Barbour, which has been involved in evaluating those resources since shortly after the inception of the Inner Harbor Project, concludes that: a quiet, peaceful, historic city [does] not lay below [the Project site] waiting to emerge. To the contrary, the Project area, like ... [other historic sites] that I have worked at over the last thirty-four years, had been built, torn down and rebuilt multiple times over the course of its history and with a look more to the future than a concern for the past. (Item no. 10, ex.2 (“Barbour aff.”) ¶ 8.) III. ARCHEOLOGICAL EXPLORATION AT THE INNER HARBOR SITE Dr. Barbour’s firm was commissioned to conduct archeological exploration in order to determine the likely extent of historic resources at the Project site. That exploration has proceeded in stages. At the conclusion of each stage, Dr. Barbour reported his findings and recommendations and ESDC, in consultation with SHPO, reviewed Dr. Barbour’s report and defined goals and parameters for the next stage. The first stage in Dr. Barbour’s work, termed “Stage IA,” involved a literature search, to ascertain the types of resources that have been described on maps, in contemporary newspaper, journals and other writings, and in secondary sources. Based on that literature search, Dr. Barbour determined that resources likely to be found sub-surface at the site included taverns, brothels, light industry, remnants of Commercial and Prime Slips and other artifacts related to 19th century lake transport. (Barbour aff. ex. A, at 10-15.) He concluded that, although “the majority” of these structures were likely demolished during urban renewal in the 1950’s, “lower layers and foundations of buildings from the 1830 through 1860 period are likely to be intact in over 50 per cent of the project area” and Prime Slip also was likely to be intact. (Id., at 2, 11-1 6.) He therefore recommended that sub-surface exploration be done to assess the extent of recoverable historic resources. (Id., at 39.) Sub-surface exploration was eventually done in three successive stages: Stages IB and II, which were completed prior to the FEIS, and Stage III, which took place after the FEIS was issued. As noted in the FEIS, “[t]he Stage IB Investigation indicated that historic cultural resources related to the early commercial center of Buffalo both exist and are recoverable on the project site;” and “Stage II indicated evidence that intact resources exist in various locations on the project site, including those associated with former industrial operations, canal resources (e.g. Commercial Slip and Prime Slip), as well as evidence of former residential inhabitation on the project site.” (FEIS, at 6-5, 6-6.) The Stage IA and II exploration disclosed that the area had been subjected to significant “disturbance” during periods of construction, particularly when a railroad trestle was constructed across the site in the late 19th century. That disturbance likely destroyed significant portions of the infrastructure, including streets and buildings, and called into question the integrity of remaining resources. (Barbour aff. ex. A, at 14-15, 27.) However, in his report of the findings from the “Stage II” excavations Dr. Barbour concluded: it appears that portions of the project area may meet National Register Criteria A and D and potentially contain data for addressing regional and national contexts. It also contains research potential to address questions concerning the structure of nineteenth century industrial and commercial development. These deposits have the potential to yield significant information on the daily workings of Buffalo’s waterfront and car nal system. The project area appears to merit additional testing and appears to be eligible for inclusion in the National Register for Historic Places. [I], therefore, recommend that a Stage III archeological investigation be undertaken. (Barbour aff. ex. D, at 2.) IV. “NO ADVERSE EFFECT” DETERMINATION The Field Services Bureau of the State Office of Parks, Recreation and Historic Preservation serves as New York’s SHPO. (Item no. 9 ¶ 1.) On December 8, 1998, SHPO determined that the Inner Harbor Project would have “[n]o [ajdverse [ejffect on cultural resources in or eligible for inclusion in the National Register of Historic Places.” (Item no. 9 (“Kuhn aff.”), ex. F.) SHPO set two conditions on its finding of “no adverse effect,” that are relevant to the present motion: 1) that ESDC implement its research design for “Stage III Mitigation,” which SHPO had previously approved, and 2) that ESDC consult with SHPO “regarding the status of any canal-related commercial slip remains and their appropriate treatment or incorporation into project designs.” (Id.) SHPO’s finding of “no adverse effect” was premised in part on its conclusion that the “archeology exception” applied to resources at the Project site. (Kuhn aff. ¶ 10.) Regulations implementing § 4(f) provide that the statute does not apply to an archeological resource that is “important chiefly because of what can be learned by data recovery and has minimal value for preservation in place.” 23 C.F.R. § 771.135(g)(2). When the exception applies, “mitigation” focuses on obtaining and recording information from the site, rather than on physically preserving the historic property. Once the information is obtained, damage to the property is not considered an adverse effect under § 4(f). Thus, Robert D. Kuhn, Ph.D., who was responsible for SHPO’s review of the Project, refers to “Phase III data recovery excavations designed to mitigate impacts to ... archeological resources.” (Kuhn aff. ¶ 12.) Dr. Kuhn gives the following explanation for invoking the “archeology exception.” Excepting the vessels harbored in the Niagara river, there are no above ground buildings or structures that are more than 50 years old [at the Project site]. In fact most of the [site] is a vacant parking lot. Therefore the entirety of the Section 106 review was primarily focused on the potential effect of the project on underground archeological resources. In many respects, archeological remains are categorically different from other historic properties such as buildings or structures. Archeological sites and remains are below ground whereas buildings and structures are above ground. The importance of archeological sites is usually based upon them potential to yield significant information about our past whereas buildings and structures are usually evaluated based on other criteria. The integrity of an archeological site is evaluated based upon its potential to yield important information through excavation whereas the integrity of a building or structure is evaluated based upon its potential to continue to function for an intended use. (Kuhn aff. ¶ 5.) Preservation Coalition contends that this explanation is premised on a false dichotomy, in which “below ground” is equated with “archeological” and “above ground” is equated with “historic.” It contends that, once SHPO adopted this false premise, its conclusion was inexorable: nothing remains above ground, hence the site’s only significance is archeological. It argues that SHPO’s approach ignores the significance of the project site to the history of Buffalo and the nation, and the importance of extant resources in conveying the site’s place in history. At defendants’ request, Dr. Kuhn was permitted to testify, to clarify SHPO’s interpretation. Although he agreed that significant historic developments occurred at the Project site, Dr. Kuhn concluded that no existing resources at the Project site had sufficient integrity to qualify as historic buildings or structures, and that the focus of investigation, with regard to National Register criteria, was on whether the site had “integrity as an archeological resource.” (K24-26.) He stated that an archeological site is a type of “historic property.” However, since it “may no longer function in its original use” it is useful for its “potential to yield information.” (K27.) V. STAGE III EXCAVATIONS Beginning in December, 1998, Dr. Barbour supervised the Stage III excavation, which took place in five areas which he had determined “were most likely to yield a representative sample of the diversity of human activity that had gone on within the Project area.” (Item no. 10, ex. 2 ¶ 9.) At SHPO’s request, the excavation was expanded to cover a greater portion of the site of the Commercial slip. (Id-¶ 11.) In May, 1999, the excavation uncovered “a roughly eighty foot section of the eastern portion of the Commercial Slip wall as rebuilt in the 1880s.” (Id-¶ 12.) According to Dr. Barbour, the wall had been submerged below water level for more then one hundred twenty years. (Id.) On May 18, 1 999, SHPO determined that the Commercial Slip wall met criteria for inclusion in the National Register. (Item no. 9 ¶ 21.) SHPO’s determination is set forth in a letter to ESDC, which recommended that plans for the Inner Harbor Project should be evaluated to determine if the canal remains can be avoided and protected from project impacts. All prudent and feasible alternatives should be considered to avoid and preserve this resource. In the opinion of SHPO, the paramount significance of this resource dictates that preservation in place should be the first and primary option. (Item no. 9, ex. I, at 1.) SHPO also recommended that ESDC determine if interpretation of the canal remains can be incorporated into the project. Keeping the canal wall exposed with restoration and appropriate historical signage and interpretation in a publicly accessible venue would be the preferred option. (Id., at 2.) If it was not feasible to keep the wall exposed, SHPO recommended “that the area be carefully filled.” However, SHPO stressed that it “would not support removal of the canal wall and reconstruction solely for interpretive purposes, if the wall does not need to be otherwise impacted by the project.” (Id.) SHPO also recommended that ESDC take “every opportunity to increase site access, public visitation and tours,” and distribute information about the site, because of the “strong public interest” generated by discovery of the canal wall. (Id.) Dr. Barbour meanwhile .consulted with a number of experts regarding the Slip wall, including Dr. Stuart Scott, a retired professor of archeology at State University of New York (SUNY) at Buffalo, who had excavated a similar stone wharf at Fort Niagara in Lewiston, New York. Dr. Scott informed Dr. Barbour that the Fort Niagara wharf “disintegrated after enduring two winters of freezing and thawing.” (IdJ 13.) Dr. Barbour also consulted with Dr. Charles V. Ebert, a geology professor at SUNY Buffalo. According to Dr. Barbour, Dr. Ebert “confirmed Dr. Scott’s assessment and stated that sedentary limestone saturated with water for over a hundred years would blast apart if left exposed to one or two Buffalo winters.” (Id. ¶ 13.) Dr. Barbour also observed the condition of blocks from the Slip wall, which had been displaced by prior “disturbance” during construction in 1926. He noted “signs of deterioration” which he attributed to the exposure to the elements. (Id. ¶ 13.) ESDC commissioned URS Greiner Woodward Clyde (“URS”), engineering consultant to the Project to review and report on the technical feasibility of exposing the wall in place as part of the Project design. (Item no. 10, ex. 1 ¶ 12.) On June 25, 1999, URS recommended that the Commercial Slip wall be covered “for continued preservation and to protect it from disturbance.” (Item no. 10, ex. 1(H), at [3] — [4].) A series of meetings ensued including at least one meeting with representatives of preservationist groups, attended by Plaintiffs Executive Director, Timothy Tielman. (Item no. 10 ¶ 12.) Ultimately, Dr. Barbour, Dr. Kuhn, the Project design team and ESDC “came up with a plan that would comply with preservation guidelines.” (Id.f 13.) SHPO wrote to ESDC on August 6, 1999, to confirm that it agreed with the conclusion that exposure of the Commercial Slip wall “is not feasible and would be detrimental to the long term preservation of the wall,” and therefore that the wall should be covered over. (Item no. 9, ex. L.) Dr. Barbour concludes that the Stage III excavation will add to archeological research on the national level. In my opinion, the Project area has been thoroughly sampled and the resulting study of this work will provide scholars and the public with as thorough of an understanding of this part of the City of Buffalo as the extant archeological resources in the area can provide. (Barbour aff. ¶ 20.) DISCUSSION There are a number of preliminary issues that this Court must address. They include: (I.) Preservation Coalition’s standing to assert claims under NEPA, NHPA and § 4(f) of the Transportation Act; (II.) the proper scope of this Court’s review of the FEIS and the record that is subject to this Court’s review; and (III.) the standard of proof that Preservation Coalition must meet in order to obtain injunctive relief. As such, these issues will be discussed below ad seriatim. I. PLAINTIFF’S STANDING Defendants argue that Preservation Coalition does not have standing to bring this action. Standing is a prerequisite to obtaining injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). Defendants contend that “there are no facts alleged tending to establish any injury to health, property, wealth or other legally protected interests of the plaintiff or its members.” (Item no. 7, at 10.) However, Preservation Coalition correctly notes that “injury” for standing purposes encompasses harm to aesthetic or cultural interests if the relevant statute was intended to protect such interests. Lujan v. National Wildlife Federation, 497 U.S. 871, 886, 110 S.Ct. 3177, 3187, 111 L.Ed.2d 695 (1990). The Complaint describes Preservation Coalition as a “membership organization dedicated to the preservation of historic and cultural resources in [Erie] County” whose “members have contributed financially to it in part so that they may obtain adequate representation of their legally protected interests, which ... they could not otherwise individually afford.” (Complaint ¶ 6.) It states that “members of the Coalition live ... in the vicinity of, or own or recreate near” the Inner Harbor Project site, and that “[e]ach of the members of the Coalition has a personal interest in the preservation of the historic and cultural resources in Erie County.” (Id.lffl 6, 7.) Preservation of historic and cultural resources is within the zone of interests protected by all three Federal statutes upon which the Coalition bases its claims. NHPA declares “that it is a national policy to preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United States.” 16 U.S.C. § 461. An organization dedicated to preserving such resources clearly has standing to enforce NHPA. Vieux Carre Property Owners v. Brown, 875 F.2d 453, 459 (5th Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990). § 4(f) of the Transportation Act provides “it is the Policy of the United States that special effort should be made to preserve ... historic sites.” 49 U.S.C. § 303(a). Therefore, the Coalition’s interest in preserving Buffalo’s architectural and cultural heritage is within the zone of interests protected by § 4(f). Benton Franklin Riverfront Trailway and Bridge Committee v. Lewis, 701 F.2d 784, 787 (9th Cir.1983). Although the NEPA statute does not specifically refer to historic and cultural resources, it requires an EIS whenever a major Federal action “significantly affeet[s] the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Courts have consistently construed the “human environment” to include historic resources, Preservation Coalition, 667 F.2d at 858, and held that organizations dedicated to historic preservation have standing to assert NEPA claims. Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323, 1330-31 (S.D.N.Y.1975). Defendants also argue that the Coalition’s interests are based on unsupported speculation regarding historic resources at the Project site. (Item no. 7, at 1 2.) To satisfy Article Ill’s standing requirements, a plaintiff must show that it will suffer an “injury in fact that is (a) concrete and particularized and (b) actual and imminent, not conjectural and hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (Internal quotations omitted.) In a NEPA case, “the relevant showing” for purposes of standing, “is not injury to the environment but injury to the plaintiff.” Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000). Preservation Coalition contends that its interests will be injured in that its members will be denied an opportunity to encounter, appreciate or enjoy historic resources at the project site if they are buried and covered with new construction. Denial of access to a resource can be harm to a protected interest, Friends of the Earth, 120 S.Ct. at 704-05, even when the resource itself is not physically destroyed or harmed. Coalition Against a Raised Expressway v. Dole, 835 F.2d 803, 812 (11th Cir.1988). (Claim that highway will obstruct view of historic city hall budding implicates harm to coalition members’ aesthetic interests.) On the other hand, speculation that historic resources might possibly be buried beneath the ground at the Inner Harbor site would not be a sufficient basis for standing. However, the evidence before this Court, including the FEIS itself, indicates the likelihood that historic and cultural resources are present at the Inner Harbor Project site. The parties disagree as to the proper context for evaluating the historic significance of those resources, and also disagree whether any resources other than the Commercial Slip wall are eligible for the National Register. However, the existence of remnants of Commercial Slip, Prime Slip, building foundations, curbs gutters and other resources is most certainly not speculative, and the Coalition’s case for inclusion of those resources in the National Register cannot be termed “speculative.” Since Preservation Coalition has shown that it has an interest in preservation of historic and cultural resources at the Inner Harbor site, that this interest is within the zone of interests protected by NEPA, NHPA and § 4(f) of the Transportation Act, and that the alleged harm to such interests is immediate, concrete and not speculative, this Court finds that the Coalition has standing to bring this action. II. THE SCOPE OF REVIEW AND THE RECORD SUBJECT TO REVIEW Since NEPA does not provide a private right of action for its violations, this Court ' reviews the adequacy of a FEIS under the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989). The APA is also the basis for review of alleged violations of § 4(f) of the Transportation Act, Overton Park, 401 U.S. at 416, 91 S.Ct. at 823, and of alleged violations of the NHPA. Vieux Carre, 875 F.2d at 456. When a district court reviews an agency’s decision under APA, the scope of the court’s review, and the record that is subject to the court’s review are both subject to the requirements of that Act. Under APA, an agency’s decision must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A); Overton Park, at 416, 91 S.Ct. at 823, Oregon Nat. Resources Council, 490 U.S. at 377 n. 23, 109 S.Ct. at 1861 n. 23. The Second Circuit has stressed that, in reviewing the adequacy of a FEIS, [t]he district court does not sit as a super-agency empowered to substitute its scientific expertise or testimony presented to it de novo for the evidence received and considered by the agency which prepared the EIS. The court’s task is merely to determine whether the EIS was compiled in objective good faith and whether the resulting statement would permit a decision maker to fully consider and balance the environmental factors. County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1383 (2nd Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978) (internal citations omitted.) Under APA, the Court “review[s] the whole record.” 5 U.S.C. § 706. A district court need not, and should not develop a record ab initio, but should rely on the agency record, where that is feasible. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). However, the court can supplement the record with testimony on new matters when “the agency’s record is so sparse as to make judicial review ineffectual.” Sierra Club, 772 F.2d at 1052. In NEPA cases, the focal point for judicial review should be the [EIS] ... [However,] a primary function of the court is to insure that the information available to the decision-maker includes an adequate discussion of environmental effects and alternatives, which can sometimes be determined only by looking outside the administrative record to see what the agency may have ignored. County of Suffolk, 562 F.2d at 1384 (internal citations omitted.) Supplemental testimony may be required “when the reviewing court simply cannot evaluate the challenged action on the basis of the record before it.” National Audubon Society v. Hoffman, 132 F.3d 7, 14 (2nd Cir.1997). In its prior Decision, this Court, upon review of the FEIS and its exhibits, held that additional testimony was required on three issues, and that Preservation Coalition could call one witness to testify on each issue. (Item no. 30, at 21.) The Coalition subsequently called the following witnesses: David Gerber, Ph. D., on the historic significance of the Canal District; Dean Robert Z. Melnick on National Register criteria and application of the “archeology exception” to resources at the Inner Harbor Project site; and Daniel Rogers on the feasibility of restoring and exposing Commercial Slip. Such testimony is not part of the “record” subject to this Court’s review under the APA, but is “extra-record evidence”. The case law permits a reviewing court to consider evidence beyond that which is contained in the administrative record in certain circumstances. But, no good authority exists to permit a reviewing court to add evidence that will actually be included as part of an agency-compiled record. Hence ... we review the parties’ additional submissions as extra-record evidence. National Audubon Society, 132 F.3d at 15-16. The Supreme Court has stressed that a district court’s “inquiry into the mental processes of administrative decisionmakers is usually to be avoided.” Overton Park, 401 U.S. at 420, 91 S.Ct. at 825, citing United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004-05, 85 L.Ed. 1429 (1941). However, in a NEPA case, “the bare record may not disclose [all] the factors that were considered.” Overton Park, id. Therefore testimony or an affidavit detailing the considerations that went into the decision making process is sometimes required. Id. However, in the final analysis, it is the sufficiency of the FEIS and its exhibits which is subject to Preservation Coalition’s claims, and affidavits or testimony that include “post hoc ” explanations for Defendants’ decisions are not an adequate substitute for the FEIS if the latter is deemed inadequate under NEPA standards. Id., at 419, 91 S.Ct. at 825. III. PRELIMINARY INJUNCTION STANDARD OF PROOF Ordinarily, a party seeking a preliminary injunction has two options: it must either demonstrate a likelihood of success on the merits or it must raise sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. However, in a ease in which the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should only be granted only if the moving party meets the more rigorous likelihood-of-success standard. Bery v. City of New York, 97 F.3d 689, 694 (2nd Cir.1996) (internal quotations omitted.) Defendants argue that the Inner Harbor Project is government action taken in the public interest pursuant to a statutory and regulatory scheme, and that Plaintiffs must meet the likelihood-of-success standard in order to obtain preliminary injunc-tive relief. Preservation Coalition contests this point; however, it has not provided any authority or rationale supporting its contention that the less rigorous “fair ground for litigation — balance of hardships” standard is applicable in the present case. Some earlier Second Circuit decisions suggest that both standards are applicable in a NEPA case. See State of New York v. Nuclear Regulatory Com’n, 550 F.2d 745, 750 (2nd Cir.1977) (to obtain a preliminary injunction, movant must meet either likelihood of success, or serious questions—balance of hardships standard.) Britt v. United States Army Corps of Engineers, 769 F.2d 84, 88 (2nd Cir.1985) (same.) However, in at least one recent decision, the Second Circuit held that the plaintiff was not entitled to a preliminary injunction, since it “has faded to show a likelihood of success on the merits on its claim that the proposed [government action] violates NEPA.” County of Seneca v. Cheney, 12 F.3d 8, 12-13 (2nd Cir.1993). Cheney makes no mention of the alternate standard; however, the court’s discussion of the NEPA claim suggests that plaintiff would not meet that standard, since the court held that there were no serious issues going to the merits of the claims. Id. It is clear from the FEIS that the Inner Harbor Project is a government project in the public interest. Its goals are to develop a tract of property for the public’s use and enjoyment by providing a range of recreation and transportation opportunities and increasing public access to Buffalo’s waterfront. Also, it is clear that the Project is subject to a very extensive statutory and regulatory scheme, which includes the interrelated Federal requirements of NEPA, NHPA and § 4(f) of the Transportation Act with their respective regulations, as well as New York statutory requirements under EQRA and the State Historic Preservation Act. This Court therefore holds that the Coalition must show irreparable harm and likelihood of success on the merits in order to obtain a preliminary injunction against construction at the Inner Harbor Project. A. Likelihood of Success: Plaintiff’s Arguments Preservation Coalition contends that its proposals for developing the Inner Harbor Project site will better preserve historic resources at the site while enabling the Project to meet all of the goals defined in the FEIS. The Coalition claims that Defendants’ rationale for rejecting its proposals was based on a misconstruction of the goals of the Inner Harbor Project as stated in the FEIS as well as a false assessment of the feasibility of the Coalition’s proposals. Preservation Coalition also claims that Defendants misapplied the “archeological exception” to § 4(f) of the Transportation Act, thereby erring in its conclusion that the project would have no impact on historic resources at the Project site. It also argues that Defendants considered resources at the site only as archeological resources, and therefore failed to assess the historic value of these resources in a proper context. Preservation Coalition also contends that the Stage III excavation and its aftermath — including discovery of the Commercial Slip wall, evaluation of the durability of the Slip wall, and the decision to bury the wall in order to preserve it — constitute new information and events that implicate environmental issues in a significant manner and extent not considered in the FEIS. For this reason, it claims that a Supplemental Environmental Impact Statement (SEIS) is required. 1. Definition of Project Goals The FEIS identifies three general goals for the Inner Harbor project:!.) the enhancement of access to and transportation options at the Inner Harbor; 2) the encouragement of recreational use of the Project site and private development of adjoining properties; and 3) the enhancement of the attractiveness of the location. (FEIS, at ES-4, 5). Each of these goals is broken into more specific objectives. For example, the first goal, enhancement of transportation options, includes creation of a harbor boat basin as an objective. (Id., ES-4). The third goal, enhancement of land uses, includes creation of “berthing opportunities for recreational and commercial maritime vessels” as an objective (Id., ES-S.) Although the “Goals” section of the FEIS does not specifically mention reconfiguration of the shoreline, the “Background” section states that the “conceptual plan” for the project includes, “[rjeconfiguration of the Buffalo River Shoreline to create two new inlets to accommodate transient boats, water taxis, tour boats and naval vessels.” (Id., ES-3.) Preservation Coalition claims ESDC rejected proposals that would preserve significantly more historic resources, based on a goal not identified in the FEIS. It argues that, although increased docking facilities for small and commercial recreational craft is an identified goal, reconfiguring the shoreline to construct docking along artificial inlets is not an essential aspect of the project. Rather, Preservation Coalition argues, this particular solution to the docking issue was driven by funding considerations not germane to the project’s goals. Preservation Coalition therefore claims that the rationale in the FEIS for rejecting its alternative proposals is arbitrary and capricious since it “ele-vat[ed] ... agency decisions about funding to the status of goals and objectives of the Project.” (Item no. 2, Plaintiffs Memorandum, at 2.) As discussed above, under the Administrative Procedure Act, decisions set forth in the FEIS must be upheld unless they are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). Reconfiguration of the shoreline is not explicitly listed as a goal or objectives in the “goals” segment of the FEIS. However, the general description of the project, its physical setting and the “conceptual plan” for achieving the project’s goals make it clear that project managers decided that reconfiguration was a necessary component of the plan. Reconfiguration is considered essential to accomplish the stated goal of increasing access by small boats and commercial crafts to the Inner Harbor, and its objective of creating docking facilities for such craft. Although Preservation Coalition advocated for a plan that would create docking facilities along the shoreline without creating a new inlet, the rejection of that plan cannot be deemed arbitrary, capricious or an abuse of discretion, and there is no basis for finding the FEIS deficient on this account. Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. 2. Archeology Exception § 4(f) of the Transportation Act provides that a Federally funded transportation project requiring the use of a public park or historic site can be approved only if there is no prudent and feasible alternative to using that site and the project includes all possible planning to minimize harm to the historic site. 49 U.S.C. § 303(c). The FEIS for the Inner Harbor Project states that it “includes all possible planning to minimize harm to [historic] resources” (FEIS, 6-10). This assertion is premised in part on the “archeology exception” to § 4(f). Defendants’ rebanee on the “archeology exception” must be read in light of the Supreme Court’s interpretation of § 4(f). Overton Park, 401 U.S. at 411, 91 S.Ct. at 821, held that the “clear and specific directives” of § 4(f) must be read as “a plain and explicit bar” to the use of properties protected by the statute unless the prerequisites of that statute are met. [T]he very existence of the statute[] indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. Overton Park, at 413, 91 S.Ct. at 821-22. Therefore, the Court rejected the argument that the Secretary of Transportation has broad discretion to limit the applicability of the statute. Id. Although Overton Park involved a public park, § 4(f) applies with equal force to historic sites and there is no indication in the case law that such sites are accorded lesser protection under the statute. Few reported cases have interpreted the “archeology exception.” However, a First Circuit decision, Town of Belmont v. Dole, 766 F.2d 28 (1st Cir.1985), cert. denied 474 U.S. 1055, 106 S.Ct. 792, 88 L.Ed.2d 770 (1986) explains the rationale for the rule, and its limited application. In rejecting the plaintiffs’ argument that the “archeological exception” subverted the purpose of § 4(f) the court reasoned: [t]he statute applies to “the use of ... land of an historic site of national, State, or local significance.” The regulation picks out those archeological sites whose significance lies only in the data they contain that will be at least equally well preserved outside the site. Once the data is removed, the land lacks the necessary “significance.” The process of removal itself cannot be considered an adverse “use” of the site as long as it does not injure but preserves the objects in question. Town of Belmont, 766 F.2d at 31-32 (emphasis in original). The limited applicability of the “archeology exception” can be appreciated if one refers to the bases for including a historic resource in the National Register of Historic Places. National Register criteria “are worded in a manner to provide for a wide diversity of resources.” 36 C.F.R. § 60.4. “Districts, sites, buildings, structures and objects that possess integrity of location, design, material, workmanship feeling and association” can be considered for inclusion in the National Register if they are “significant in American history.” 36 C.F.R. § 60.4, note. The regulation defines four criteria for determining the historic significance of resources. A resource is significant under “criterion A” if it is “associated with events that have made a significant contribution to the broad patterns of our history.” It is significant under “Criterion D” if it is “likely to yield [ ] information important in history or prehistory.” Id. The “archeology exception” applies if a resource is “important chiefly because of what can be learned by data recovery.” 23 C.F.R. § 771.135(g)(2), i.e. if is likely to yield information. As Belmont explained, it does not apply, if the archeological items give a particular site a special “in place” historical or archeological significance. (Consider, for example, the Civil War battle artifacts at Gettysburg.) Id., at 33. Thus, a resource that met criterion A, association with events that made a significant contribution to the broad patterns of American history, may not be eligible for the “archeology exception” since it would not be important chiefly because of what can be learned by data recovery. There is a second component to the “archeology exception.” It only applies if the resource “has minimal value for preservation in place.” 23 C.F.R. § 771.135(g)(2). The significance of many historic resources depends on their context, and they would lose much of their significance if they were removed to another location. In this regard it is useful to clarify what it is about such resources that led Congress to accord them “paramount importance.” Overton Park, 401 U.S. at 413, 91 S.Ct. at 822. Certainly, historic resources can yield much information that is invaluable to historians, anthropologists, architects, and scholars in other disciplines. However, NHPA was not passed purely to assure a flow of information to scholars. That Act stresses the importance of preserving the Nation’s historic artifacts “as a living part of our community life” and the need “to insure future generations a genuine opportunity to appreciate ... the rich heritage of our Nation.” 16 U.S.C. § 470(b)(2), (5). It is clear that NHPA contemplated the value of enabling Americans to appreciate their heritage, by encountering historic resources in a meaningful context. Considered in that light, the logic and the limited application of the “archeology exception” is clear. As the Belmont decision suggests, civil war artifacts might be considered important chiefly as sources of information. However, artifacts from Gettysburg battlefield have an overriding importance because of their association with the historic battle that took place there. Thus, they have more than “minimal” value’ for preservation in place. Preservation Coalition contends that neither component of the “archeology exception” applies to resources at the Inner Harbor Project site. It notes that the site has been the locus of historical developments of great national importance and that resources at the site are important because of their association with those developments. In particular, the Commercial Slip not only was “associated with” the development of commerce on the Erie Canal and the Great Lakes, but was actually the means of linking those trade routes. The Coalition contends that the system of streets, sidewalks and building foundations adjacent to Commercial Slip and Prime Slip also have importance since they were the site where Buffalo “was transformed within a period of decades from a kind of sleepy frontier outpost to the 10th largest city in the United States by 1860.” (Testimony of David Gerber, Ph.D., T21.) Dr. Barbour’s reports consistently stress the historic significance of the Inner Harbor site, and specifically the significance of Commercial and Prime Slips. In his report on “Stage II” excavations, he concluded that portions of the project area “may meet National Register Criteria A and D,” an apparent reference to 36 C.F.R. § 60.4. (Barbour aff. ex. D, at 2.) As discussed above, criterion “A” applies to resources that “are associated with events that have made a significant contribution to the broad patterns of our history.” Dr. Kuhn also acknowledged Commercial Slip’s association with important historic developments. (K33-34.) He asserted that the “archeology exception” (which he termed the “research exception”) could apply to such a property (K52), but did not explain why, given its historic significance, he felt that Commercial Slip was important “chiefly” because of information that it might yield. It seems clear that the Commercial Slip wall is not important “chiefly” because of what can be learned by data collection, but that it has been associated with, and indeed spurred developments of great historic significance. The system of streets, building foundations and other resources adjacent to Commercial Slip also are important because of their association with those historic developments. Preservation Coalition also contends that the Commercial Slip wall and related resources have considerable value for preservation in place, and that their value would be significantly impaired if they were removed from their historic situs. When consulted regarding treatment of the Commercial Slip, SHPO stressed that “the paramount importance of this resource dictates that preservation in place should be the first and primary option.” (Item no. 9, ex. I.) Dr. Kuhn acknowledged that preservation in place was the preferred treatment of the Commercial Slip. (K62, 66.) He did not reconcile that position with the application of the “archeology exception.” Rather, he explained that when SHPO made its “no adverse effect” determination, the remains of the Commercial Slip Wall had not yet been discovered, so that it was premature to assess the feasibility of preserving the wall in place. (K66.) That explanation begs the question whether the “archeology exception” applied to the Commercial Slip once it was actually uncovered and evaluated. The record strongly suggests that neither criterion for the “archeology exception” applies, at least with regard to the Commercial Slip wall, and possibly with regard to other resources at the Inner Harbor Project site. At the least, it is clear that the FEIS and its exhibits contain an insufficient explanation of SHPO’s and ESCD’s conclusion that the “archeology exception” applies to the historic resources at the Inner Harbor site. That the “archeology exception” was improperly applied to the Inner Harbor Project does not necessarily mean that Preservation Coalition has shown a likelihood of success on its claim that the Project fails to comply with § 4(f). Defendants argue that they complied with § 4(f) regardless of whether the “archeology exception” applies, in that there is no prudent and feasible alternative to using the Project site and they have done all possible planning to minimize harm to the site. Defendants have certainly taken care to identify historic resources and have given much thought to their preservation. However, the “archeology exception” is so embedded in their analysis of the Project’s impact on historic resources that it is impossible to discern from the FEIS or its exhibits whether Defendants complied with § 4(f). For example, SHPO and Dr. Barbour refer to the Stage III excavation as a “mitigation” measure. “Mitigation” in this context refers back to the “archeological exception,” in that the excavations are defined as a means of retrieving and recording data that would otherwise be lost. This approach is consistent with the notion that the site is “important chiefly because of what can be learned by data recovery,” 23 C.F.R. § 771.135(g)(2). However, if the site also is important because of its association with significant historic events, then the Stage III excavations are only the first step in mitigation, the identification of resources, and the FEIS arguably is incomplete in its analysis of how to minimize harm to the resources discovered during Stage III. This question is discussed more fully in the following segment. The FEIS also does not address Preservation Coalition’s contention that burying the Commercial Slip wall and other resources is an adverse “use” of those resources, within the meaning of § 4(f). See, Citizen Advocates For Responsible Expan sion v. Dole, 770 F.2d 423, 441 n. 23 (5th Cir.1985), and cases cited therein. If resources at the project site are valuable only as data, this argument is irrelevant, since the resources will arguably have yielded relevant information prior to being covered over, and conceivably will yield additional information if the wall is uncovered at some future date. However, if the resources are also significant because of their association with significant historic events, then arguably the public ought to have access to them. The FEIS, therefore, must at least discuss why there is no feasible or prudent alternative to burying the resources, and why doing so is consistent with “all possible planning” to mitigate harm. It may well be that, upon considering the alternatives in light of the association of resources at the Project site with significant historic developments, Defendants ■will conclude that the present plan is the only feasible and prudent approach, and will be able to justify that conclusion. However, in its present state, the FEIS and its exhibits do not support that finding. 3. Supplemental EIS The NEPA statute does not explicitly address the subject of a Supplemental EIS. (SEIS). Marsh v. Oregon Nat. Resources Council, 490 U.S. at 370, 109 S.Ct. at 1857. However, preparation of a SEIS “is at times necessary to satisfy the Act’s “action-forcing” purpose.” Marsh, at 371, 109 S.Ct. at 1858. NEPA requires that information regarding the environmental impact of a project be disseminated, to enable the public to “react to the effects of a proposed action at a meaningful time.” Id., citing Robertson, 490 U.S. at 349-50, 109 S.Ct. at 1845-46. It would be incongruous with this approach to environmental protection, and with the Act’s manifest concern with preventing uninformed action, for the blinders to adverse environmental action, once unequivocally removed, to be restored prior to the completion of agency action simply because the relevant proposal has received initial approval. Marsh, id., citing TVA v. Hill, 437 U.S. 153, 188 n. 34, 98 S.Ct. 2279, 2299 n. 34, 57 L.Ed.2d 117 (1978). Therefore, when information which comes to light after completion of a FEIS, shows that the Project will “affect the quality of the human environment in a significant manner or to a significant extent not already considered” in the FEIS, a supplemental EIS must be prepared. Marsh, at 374, 109 S.Ct. at 1859. The word “significant” is critical. An agency need not supplement an EIS every time new information comes to light. Such a requirement would make completion of any project that potentially impacted on any aspect of the environment a virtual impossibility. Even if the information suggests an impact on the environment that was not addressed in the EIS, a SEIS is not necessarily required. A SEIS is required only when new information shows that the project will affect the environment in a significant manner, or to a significant extent, that was not addressed in the EIS. In his affidavit, Dr. Kuhn asserts that, none of the discoveries made during the Phase III archeological excavations were unanticipated or represent new information. All of the features identified represent archeological remains and sites noted in the Phase IA assessment and identified as targets for mitigation in the Phase III research design and [Draft] EIS. Indeed, the second condition of the SHPO’s No Adverse Effect determination specifically anticipates the discovery of these remains. (Item no. 9 ¶ 20.) Certainly the FEIS “anticipated” discovery of the Commercial Slip wall and other resources in the sense that it predicted their discovery, and it “anticipated” consultation with SHPO over those discoveries, by requiring such consultation. However, the critical question is not whether the FEIS “anticipated” those events, but whether information obtained after the FEIS suggests that the Project will affect historic resources “in a significant manner or to a significant extent” that is not addressed in the FEIS. If so, a SEIS is required. This Court finds that subsequent developments implicated at least three significant issues in a way that was not adequately addressed in the FEIS. These issues are: 1) SHPO’s finding that the Project has no adverse effect on historic resources protected by § 4(f); 2) Defendants’ determination that the Commercial Slip wall must be buried in order to preserve it; and 3) SHPO’s determination that no resources, other than the Commercial Slip wall, qualify for the National Register. As discussed above, § 4(f) provides that a transportation project that uses a historic site cannot be implemented unless the agency shows that there is no feasible and prudent alternative to the use of the site and that it has done all possible planning to minimize harm to the site. 49 U.S.C. § 303(c). SHPO determined that the Inner Harbor Project would have no adverse effect on historic resources eligible for the National Register, and ESDC adopted that conclusion in the FEIS. A project can be deemed to have no adverse effect on a historic resource under § 4(f) if the resource is not eligible for the National Register; if the resource, although eligible for the National Register, qualifies for the “archeology exception;” or if the Project does not “use” the resource. Post-FEIS events