Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. The County of Hanover, Virginia (the “County”) received from the United States Army Corps of Engineers (the “Corps”) authorization to build a project, the purpose of which is to collect sewage, treat it, and then discharge the treated sewage into the Pamunkey River. As designed, the point of discharge (or “outfall”) would be located on property that Frances Broaddus Crutchfield and Henry Ruffin Broaddus (the “Plaintiffs”) own, and the discharge would be dispersed into the Pamunkey River by a diffuser that would be located in the Pamunkey River where the river abuts the Plaintiffs’ property. The Virginia Department of Environmental Quality (the “DEQ”) has classified the Pamunkey River as “impaired” because the level of fecal bacteria extant therein exceeds that which is allowable under applicable water quality standards. The Pamunkey River also suffers from shortage of dissolved oxygen and, for that reason, the DEQ has listed it as “threatened due to natural conditions.” See Administrative Record, at 1806-08. In a previous action, the Court invalidated the Corps’ decision to verify that the County could construct a slightly different version of the project pursuant to several so-called Nationwide Permits (“NWPs”). The matter was remanded to the Corps, which, by a Memorandum for the Record (“MFR”) dated April 4, 2002 (the “April 4 MFR”), decided that the County could proceed with a modified version of its waste-water treatment project under a different set of NWPs. In this action, the Plaintiffs challenge that second permitting decision. For a complete understanding of the previous litigation, it is advisable to refer to the Memorandum Opinions issued in Crutchfield v. United States Army Corps of Engineers, Civil Action No. 3:00ev525, on August 14, 2001, November 2, 2001, and December 12, 2001, and to the Memorandum Order issued May 22, 2002 (collectively referred to as “Crutchfield I”). Those decisions provide a comprehensive review of the first dispute, resolution of which preceded, ahd forms the background of, this action. In the interests of brevity and completeness, the opinions in Crutch-field I are incorporated here, however, a summary review of the prior litigation is set forth in Section I.A. Like Crutchfield I, this action was filed pursuant to the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. (the “APA”). The Complaint alleges that, in addition to violating the APA, the decision-making process through which the Corps verified the County’s use of four NWPs as the authority under which to construct its revised sewage treatment project contravened the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq.; the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq.; and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. The Plaintiffs contend that, for a second time, the Corps’ actions with respect to the County’s project were arbitrary, capricious, and not in accordance with law. The parties have submitted briefs in support of their respective positions on the merits of the Plaintiffs’ challenge, and, on July 10, 2002, oral argument was heard. For the reasons set forth below, the Corps’ decision to verify the NWPs, as articulated in the April 4 MFR, is set aside as arbitrary, capricious, and not in accordance with law. I. STATEMENT OF FACTS A. Crutchfield I As stated above, the nature and evolution of this dispute can be appreciated fully only in perspective of the decisions in Crutchfield I, however, for present purposes, an abbreviated review of that case must suffice. Under the circumstances outlined exhaustively in the decisions issued in Crutchfield I, the County planned, and began construction of, a wastewater treatment project, several aspects of which implicated federal environmental laws and regulations, and, as such, required authorization by the Corps. That project, as it originally was conceived, involved construction of a wastewater treatment plant (the “WWTP”), an interceptor pipeline to carry untreated wastewater to the WWTP for treatment (which the parties referred to as the “TC Interceptor”), a discharge forcemain, and an outfall/diffuser structure. See generally Crutchfield, 154 F.Supp.2d at 881-86, 175 F.Supp.2d at 838-40, 192 F.Supp.2d at 447-51. Pursuant to the CWA and its implementing regulations, the Corps was called upon to decide what type of permits, if any, could issue to authorize the County to undertake certain activities (ie., dredging, filling, and construction) involving wetlands upon which components of that project were intended to be built. On June 7, 2000, the Corps issued a Memorandum for the Record verifying that the County was authorized to proceed with construction of the WWTP, forcemain, and outfall pursuant to Nationwide Permits (“NWPs”) because those three components of the project would cause only minimal impacts to wetlands. However, the Corps also decided that the TC Interceptor needed to be assessed under the more stringent regulations applicable to individual permits because the impact on wetlands of that component would be more than minimal. At the risk of oversimplification, there are two basic processes through which the Corps may confer its regulatory approval upon projects that affect wetlands which are subject to its jurisdiction. One is the general permit procedure, of which verification of an NWP authorization is one kind. The other is the issuance of an individual permit. Projects that are permitted to proceed under NWPs undergo no significant environmental review under the CWA; that is because such a project qualifies for NWP status only upon a preliminary determination that it will have “minimal impacts” upon wetlands. In contrast, projects that must proceed pursuant to the individual permit process undergo a rigorous environmental review. Clearly, it is significantly advantageous for a permit applicant to be allowed to proceed under an NWP and, thereby, avoid the expense and delay that attends the more thorough environmental scrutiny that is inherent in the individual permit process. Thus, the determination whether a project poses a greater than “minimal impact” on wetlands is of critical importance. And, as shown in Crutchfield I, the definition of the project is a fundamental aspect of the determination that a project will, or will not, engender only “minimal impacts.” The gravamen of the Plaintiffs’ claims in Crutchfield I was that, in verifying that the County could proceed with construction of the WWTP, the forcemain, and the outfall, the Corps had failed to take into account the environmental impacts of the TC Interceptor, for which the County separately had sought authorization in the form of an individual permit. By authorizing the County to proceed in that manner, the Plaintiffs argued, the Corps had allowed the County improperly to “segment” the TC Interceptor from the other components of the project, thereby evading the full measure of regulatory scrutiny that the environmental laws require. See id. at 881. The record reflected that the Plaintiffs were correct; and, therefore, the verifications that the Corps had given were set aside as arbitrary, capricious, and not in accordance with law. See Crutchfield, 154 F.Supp.2d at 904-06. The matter was remanded to the Corps so that it could evaluate the project as a whole and, in perspective of that evaluation, satisfy the applicable requirements of the CWA, NEPA and NHPA. In perspective of that judgment, and by letter dated September 25, 2001, the Corps informed the County that it had “determined that all four components of the County’s expansion of its sewage treatment system should be consolidated into a single [Joint Permit Application] for review and processing of an individual Department of the Army permit.” Accordingly, the Corps asked the County to “modify [its] current [individual permit application for the TC Interceptor], along with the necessary appendices, drawings and supporting information, to include the WWTP, forcemain and outfall.” See Crutchfield, 192 F.Supp.2d at 451. The Corps informed the Court of that development in a pleading filed October 2, 2001, one day before a scheduled hearing on the Plaintiffs’ motion for permanent injunctive relief. The Corps represented that it would “address all components of the project in a single permitting action and [that it would] do so in the context of an application for an individual permit rather than a request for an NWP authorization.” In that same pleading, however, the Corps also expressed that it did “not understand the Court to have required an individual permit application for any of the project components[,]” and, instead, had “made its decision to require an individual permit application for the [I]nterceptor, WWTP, forcemain, and outfall on a number of factors, including a reevaluation of the permitting procedures that would be most appropriate in light of the Court’s decision.” By the time that decision was issued, the County virtually had completed construction of the forcemain and had made substantial progress in constructing the WWTP. However, construction of the outfall/diffuser and, of course, the TC Interceptor had not begun. The County desired to continue work on the WWTP, but the Plaintiffs objected. Thus, the parties argued, and adduced evidence respecting, whether injunctive relief was necessary pending completion of the tasks with which the August 14 Opinion charged the Corps on remand. In perspective of both the facts of record and the relevant legal principles, the Court determined that injunc-tive relief was appropriate. See id. at 466-67. Therefore, on November 2, 2001, the County was enjoined from undertaking further construction on the wastewater treatment project until such time as the Corps, on remand, properly and fully had discharged its statutory responsibilities. See id. On November 16, 2001, and in accordance with the Corps’ letter of September 25, the County submitted to the Corps a revised Joint Permit Application (the “November 16 JPA”) in which it sought authorization to construct the WWTP, forcemain, and outfall/diffuser (as those components of the project originally had been designed), as well as a new component referred to as the Lee Davis Pump Station and Forcemain (the “Lee Davis Alternative”). A.R., at 1468. The County explained that the Lee Davis Alternative was intended to replace the TC Interceptor as the initial means through which raw sewage would be conveyed to the WWTP. Whereas the TC Interceptor had been expected permanently to impact 3.84 acres of wetlands, which would have disqualified it for verification under any NWP, the Lee Davis Alternative was expected to impact only 30 square feet of wetlands. The County also represented that it had abandoned any plans to construct the TC Interceptor in the foreseeable future, and it formally withdrew its original permit application for that component. See generally Crutchfield, 175 F.Supp.2d at 840-42. Having done so, the County filed a motion to stay the order of injunction entered on November 2, which the Court converted into a motion seeking dissolution of that injunction. That motion was premised upon what the County contended was a significant change in circumstances brought about by its submission of the revised JPA — ie., the fact that construction of the revised project (as described in that application), would cause substantially less impact to wetlands than previously had been anticipated. For the reasons set forth in the Memorandum Opinion issued December 12, 2001, that motion was denied. See Crutchfield, 175 F.Supp.2d at 849. Accordingly, the Corps proceeded with its consideration of the revised JPA with the November 2 injunction still firmly in effect — that is to say, the County could not, and did not, undertake any construction activity on the project while the Corps reviewed the new JPA. Approximately four months later, the Corps issued the April 4 MFR in which, rather than declaring whether the County’s application satisfied the criteria for approval of an individual permit, it again verified that the County could proceed with construction of the several components of the revised project under the authority of NWPs (albeit different NWPs than were at issue in Crutchfield I). On that same day, the Corps notified the Court of its decision. B. The Plaintiffs’ Challenge in this Case Almost immediately after the April 4 MFR was issued, the County sought dissolution of the injunction that had been in place since November 2, 2001. The Plaintiffs filed both a brief in opposition to the County’s motion to dissolve that injunction and this, entirely new, action. As noted above, the Plaintiffs also moved for preliminary injunctive relief which, if granted, would have had the practical effect of prohibiting the County from undertaking the construction activities that the newly verified NWPs otherwise authorized it to undertake. Recognizing that there were “a significant number of common factual and legal issues presented by” the County’s motion to vacate the November 2 permanent injunction and the Plaintiffs’ motion for preliminary injunctive relief in the new action, and with an eye toward avoiding inconsistent adjudication of those common issues, those motions were set for simultaneous briefing and oral argument. On May 17, 2002, the County’s motion to vacate the November 2 injunction was granted because its purpose had been accomplished. The Plaintiffs’ motion for a preliminary injunction was denied because they had failed to demonstrate that they would suffer irreparable injury before this action could be decided on its merits. The action was set for hearing on the merits of the Plaintiffs’ challenge, which calls into question both the process by which the Corps reached its decision to verify NWPs for the County’s revised project and the legality of the decision. It is necessary, therefore, to discuss in some detail the project for which the County sought the Corps’ authorization, the process through which the Corps reviewed that project, and the findings that the Corps made in its April 4 MFR. 1. The Purpose Of The Project The record here, as in Crutchfield I, demonstrates that “[t]he construction and operation of the wastewater treatment project are integral to the County’s ability to meet its goals under its ‘Comprehensive Plan,’ the purpose of which is to help the County manage population growth and expansion in an orderly manner.” Crutchfield, 192 F.Supp.2d at 447. The County currently satisfies its need for wastewater treatment by using two of its own waste-water treatment facilities, which are located in the northern part of the County’s growth area (referred to as the “Suburban Service Area” or “SSA”) and by sending sewage from the southern portion of the SSA to Henrico County (“Henrico”) for processing. The latter method of sewage treatment is accomplished pursuant to a contractual arrangement between the County and Henrico that allows the County to treat up to 5.4 million gallons per day (“mgd”) at Henrico’s facilities. See id. at 448, n. 2. Administrative Record, at 426 (hereinafter cited as “A.R., at_”). It is undisputed that the principal benefit that the County expects to derive from its operation of the wastewater treatment project that is at issue here is the diversion from Henrico, to its own treatment facility (the WWTP), of a substantial amount of wastewater. Such “off-loading” of sewage, as the parties have referred to it, would allow the County to avoid (at least temporarily) what it perceives as an imminent threat of. exceeding the 5.4 mgd limit of its contract with Hen-rico. Specifically, the County predicts that, absent the improvements that it intends to build, and in perspective of the approximately 4% growth per year that is anticipated within the SSA, it would need to divert approximately 5.71 mgd to Henri-co as of the year 2003. A.R., at 1411. That amount, of course, would exceed the County’s contractual limitation. Thereafter, in 2004, 2005 and 2006, the County predicts that it would need to divert 6.22 mgd, 6.72 mgd, and 7.3 mgd, respectively, to Henri-co. Id. That magnitude of off-loading is untenable, however, because Henrico officials have indicated that they are not inclined to modify Henrico’s contract with the County to accommodate such growth. A.R., at 1409-10. Therefore, at least in large part, the County must fend for itself, which is a major impetus driving its efforts to improve its wastewater treatment system. The WWTP would have an initial processing capacity of 5 mgd, however, the County quickly and easily could increase that capacity to 10 mgd, and, ultimately, to 30 mgd. It makes sense, therefore, that the County’s second stated objective is “to be able to utilize this additional capacity through appropriate conveyance systems (ie., sewer lines).” A.R., at 429. 2. The Original Project As discussed above, the County’s first attempt at obtaining federal regulatory approval for its project was frustrated upon a finding that, at the County’s urging: the Corps ... had arrived at a ‘remarkably illogical conclusion’ respecting whether the WWTP, the forcemain, and the outfall/diffuser had ‘independent utility’ from the [TC Interceptor] so that construction of those three components could proceed under authority of NWPs while the Corps considered whether to issue an individual permit for construction of the [TC Interceptor]. Crutchfield, 192 F.Supp.2d at 448 (citing 154 F.Supp.2d at 895-903; 33 C.F.R. § 330.6(d)). The decisions in Crutchfield I reflect that the dispute in that case centered around the TC Interceptor, which, as noted, was intended to be the means through which the County would begin delivering untreated wastewater to the WWTP (when the WWTP first became operational). As designed, the TC Interceptor was to consist of approximately 30,000 feet of gravity sewer which was to be made of pipeline that would have varied between 36 and 48 inches in diameter and which would have been able to accommodate an average wastewater flow capacity of approximately 12 mgd. A.R., at 457-58. Initially, however, the County intended that the TC Interceptor would deliver only approximately .75 mgd to the WWTP. A.R., at 460. That conveyance was to be accomplished by connecting other sewer lines (both existing and proposed) to the TC Interceptor, through which the wastewater that those other sewer lines collected would be diverted to the TC Interceptor and, through it, to the WWTP. A.R., 1643. The TC Interceptor was designed to run parallel to the route of the Totopotomoy Creek and, primarily, to serve the portion of the SSA lying within the Totopotomoy Creek watershed. Id. 3. The Revised Project However, after the Court invalidated the Corps’ verification of NWPs for the WWTP, forcemain, and outfall components of the original project, the County decided to forego construction of the TC Interceptor, and it abandoned its application for an individual permit for that component. Instead, the County revised the project so that, at least initially, wastewater would be conveyed to the WWTP through the Lee Davis Alternative, which would consist of a pump station (that initially would serve approximately five square miles of the SSA) and a forcemain (through which wastewater collected from that area would be pumped to the WWTP). A.R., at 451-53. In contrast to the TC Interceptor, however, the Lee Davis Alternative, and the existing and proposed sewer lines that the County envisions connecting thereto, primarily would serve a portion of the SSA lying to the south of the Totopotomoy Creek watershed area. A.R., at 1643. The record reflects that the Lee Davis Alternative is designed initially to convey approximately .7 mgd of wastewater to the WWTP, which is only slightly less than the TC Interceptor was designed to convey. A.R., at 452-54. In terms of the 90-day rolling average measurement, that .7 mgd of wastewater would result in an approximately .8 mgd decrease in the peak 90-day rolling average that the County otherwise would expect to experience under its contract with Henrico. That is to say, the County anticipates that, if the Lee Davis Alternative were to become operational in 2003, the peak 90-day rolling average under its contract with Henrico would decrease by an amount equal to the .8 mgd that would be off-loaded to the WWTP. A.R., 452; 1411. The County asserts that, even absent any other additions or improvements to its wastewater treatment system, the Lee Davis Alternative would provide sufficient flows of wastewater to allow the County not only to begin operating the WWTP but also to remain within the limit of its contract with Henrico. A.R., at 451. There appears to be no dispute that the flow from the Lee Davis Alternative would provide enough sewage to the WWTP to allow the County to begin operating the WWTP. However, the Plaintiffs strenuously challenge the latter assertion — that, on its own, and with no additional improvements, the Lee Davis Alternative would convey enough wastewater to the WWTP to meaningfully assuage the County’s self-proclaimed wastewater treatment crisis. That challenge forms a core component of their arguments with respect to both the evidentiary basis upon which the Corps premised its April 4 permitting decision and the process through which it reached that decision. With that in mind, it is appropriate to consider those issues (ie the facts of record respecting the Corps’ decisional process and the information upon which it based its ultimate decision). 4. The Corps’ Decisional Process The administrative record consists of some six thousand pages, most of which have nothing to do with the Plaintiffs’ challenge here. Similarly, although the Corps’ decisional document is forty-seven pages in length, the parts that are relevant to the issues in this case consist of, at most, fifteen pages. a. The Pre-Application Meeting, Submission Of The JPA, And The Plaintiffs’ Initial Objections Following the judicial invalidation on August 14, 2001 of the Corps’ June 7, 2000 permitting decision, and in accordance with the Corps’ representation that it would assign staff members to undertake the tasks with which it had been charged on remand who were different than those that had participated in the original decision, the Corps assigned primary responsibility over the County’s revised JPA to Ms. Pamela K. Painter. A.R., at 2835. On November 9, 2001, which was one week after entry of the permanent injunction in Crutchfield I, Ms. Painter met with representatives from the County “to discuss the submission of [the County’s] new application” for its wastewater treatment project. A.R., at 2654. Ms. Painter refers to that pre-application meeting in a November 16, 2001 Memorandum for the Record (the “November 16 MFR”), in which she states that “[a]s a result of the recent litigation, the Corps will be processing the application as an individual permit rather than as Nationwide Permits.” Id. (emphasis supplied). Accordingly, she explains, “the County wanted to meet with us to discuss the process before submitting their application.” Id. The November 16 MFR continues by describing the topics that Ms. Painter and the County representatives discussed at that meeting, among which were “alternatives to the proposed project, the individual permit review process, [and] the requirements for a complete applieation[.]” Id. It was decided that, on December 6, 2001, the County’s representatives would “make a presentation of their proposal” at a regularly scheduled Corps intra-agency meeting. Id. Then, on November 16, 2001, the County formally submitted its JPA for its revised wastewater treatment project, which, as noted, sought authorization to construct the WWTP, forcemain, and outfall (all of which were components of the project as it originally had been conceived), as well as the Lee Davis Alternative (which replaced the TC Interceptor). On the same day, Colonel David L. Hansen, who is the District Engineer for the Norfolk District of the Corps, wrote a letter to United States Senator John Warner and Representative Eric Cantor. A.R., at 2404-05. That letter was a response to a November 8, 2001 letter from Senator Warner and Representative Cantor, in which those legislators expressed their interest in, and opinions on, the Corps’ review of the County’s project. A.R., at 2401-03. Colonel Hansen’s letter states, in relevant part, as follows: I have received your letter of November 8, 2001 requesting that the Norfolk District reconsider the decision to require an individual permit for Hanover County’s [TC Interceptor], wastewater treatment plant, discharge forcemain and discharge outfall. Preliminary information received at a pre-application meeting with the County on November 9, 2001 indicates that the wetland impacts of these activities may indeed be minimal and the project may qualify for Nationwide permits. However, the District’s decision to assert discretionary authority in light of the recent litigation, is based on the need to evaluate all segments of the project, as well as alternatives to the project, as a whole. [A] final permit decision by the Corps could reasonably] be expected within 105 days of receipt of a complete permit application from Hanover County. Hanover County’s new application was hand delivered to the Norfolk District today and my staff has begun the initial review for completeness. A.R., at 2404 (emphases supplied). It is undisputed that an application for an individual permit must be “complete” before the Corps may issue public notice that it will review the project described in that application. See 33 C.F.R. § 325.1(d)(9) (explaining that “[a]n application will be determined to be complete when sufficient information is received to issue a public notice”). One essential aspect of the Corps’ inquiry into the “completeness” of an application is governed by 33 C.F.R. § 325.1(d)(2), which provides: All activities which the applicant plans to undertake which are reasonably related to the same project and for which a DA permit would be required should be included in the same permit application. District engineers should reject, as incomplete, any permit application which fails to comply with this requirement. Ms. Painter was charged with the task of determining whether the County’s November 16 JPA was “complete” and, in this regard, her November 29, 2001 Memorandum for the Record (the “November 29 MFR”) indicates that she had some initial “questions concerning the project description[.]” But, after speaking with a representative from the County on November 28, and after “going over the project drawings with him,” Ms. Painter believed that she “had a thorough understanding of the project [and] enough information to prepare the public notice[]” therefor. A.R., at 2655. That same afternoon, however, Ms. Painter read a copy of the Plaintiffs’ brief in opposition to the County’s motion to dissolve the November 2 injunction in Crutchfield I, and, according to the same November 29 MFR, she e-mailed the same County representative (Mr. Herzog) to discuss another concern that had arisen in her mind. Id. Specifically, Ms. Painter sought additional information respecting the Plaintiffs’ contention (which they had articulated in their brief) that “the Lee Davis [Alternative] will serve a completely different area of the County than the [TC] Interceptor [and that] the [November 16] application submitted to the Corps does not disclose all of the County’s planned activities.” Id. Thereafter, Ms. Painter again communicated with Mr. Herzog and informed him that she “would review [his] response [to her concerns] and determine if the information was sufficient to consider the application complete.” Id. On December 7, 2001, counsel for the Plaintiffs sent a letter to Ms. Painter in which he reiterated his clients’ position that the County’s JPA was not complete; however, it is not clear on what date Ms. Painter actually received that letter. A.R., at 2156. In essence, the Plaintiffs asserted that the County “ha[d] not yet provided [the Corps] with a complete application” primarily because the application did not include “the County’s plans for construction of the [TC Interceptor].” Id. In response to the County’s suggestion that it intended for the Lee Davis Alternative to replace the TC Interceptor, the Plaintiffs noted that “these two methods of sewage collection and delivery will serve completely different areas of the County[]” and that “[t]he County’s' Comprehensive Plan and Water and Wastewater Facilities Master Plan both continue to call for service to be provided in the area that was to be served by the [TC Interceptor].” Id. Therefore, the Plaintiffs posited, “[i]t simply is not credible that the County has abandoned the [TC Interceptor], and in fact the County has refused to state categorically that it will not seek to build that portion of the project.” A.R., at 2156-57. Counsel also pointed out that the County had not disclosed in its JPA “the plans for and the environmental effects of the other sewage collection facilities [that] it intends to construct.” A.R., at 2157. Finally, counsel expressed the Plaintiffs’ agreement with “the Corps’ decision to process this application as an individual permit[,]” because, in their view, the project, as proposed, “certainly has more than minimal environmental effects.” Id. b. The Decision That The JPA Was Complete And The Issuance Of Public Notice Almost immediately thereafter, the Corps determined that the County’s JPA was “complete” (ie., that the JPA included all “reasonably related” activities that the County planned to undertake), and, on December 11, 2001, it issued public notice soliciting comments about the possible issuance of an individual permit for the project described in the JPA. A.R., at 2158; 2658-61. The Plaintiffs’ counsel was informed of that decision in a letter dated December 13, 2001 from Ms. Painter. Id. In that letter, Ms. Painter refers to a December 6, 2001 meeting between Corps officials and representatives from the County, after which the Corps arrived at its decision that the JPA was complete. Id. The December 6 meeting is the subject of Ms. Painter’s December 10, 2001 and December 27, 2001 Memoranda for the Record (the “December 10 and 28 MFRs”), which set forth the reasoning underlying the Corps’ conclusion that the County’s JPA was complete (within the meaning of 33 C.F.R. § 325.1). A.R., at 2656-57; 2714-16. As explained in those MFRs, at the December 6 meeting “[t]he County was asked to outline their future plans so that the Corps could determine if any of those activities would be reasonably related to the currently proposed project.” A.R., at 2656. The following is Ms. Painter’s description of the County’s response to that inquiry: The County explained that the [TC Interceptor] was originally proposed to provide initial flow to the [WWTP] from the existing pump station ... to offload wastewater being sent to Henrico County and to provide enough flow to economically operate the [WWTP], The Lee Davis [Alternative] mil serve a portion of the Beaverdam Creek basin rather than the Totopotomoy Creek basin that would have been served by the [TC Interceptor], However, the Lee Davis [Alternative] will provide wastewater flow to the [WWTP] in quantities nearly comparable to the [TC Interceptor], The reduction in the flow being sent to Henrico County by the construction of the Lee Davis [Alternative] will allow for the continued transfer to Henrico County of sewage flow collected in the Totopotomoy Creek basin. The Lee Davis [Alternative] will therefore allow [the County] to remain within its contractual limits of 5.1 mgd of treatment capacity with Henrico County for an additional 7 to 10 years with the anticipated 3-1% growth. The County stated that when warranted by development, additional flow from the existing Shelton Pointe pump station could be diverted via the proposed 16-inch pipe from Hen-rico County to the proposed [WWTP] through the proposed Lee Davis [Alternative]. Later, when warranted, the replacement of the proposed 16-inch pipe with a 20 to 24-inch pipe would provide additional capacity for the Totopotomoy service area well beyond the anticipated 10-year period. This alternative would eliminate the need for the originally proposed [TC Interceptor] in the reasonably foreseeable future. A.R., at 2656-57; 2715 (emphases supplied). Ms. Painter outlined the existence of the following additional considerations, which, apparently, she discussed with the County’s representatives during the December 6 meeting: (1) the County represented that it anticipated “much less development”, and a concomitant decrease in demand for wastewater treatment, “along the proposed [TC Interceptor] route than was expected when it was originally added to the [County’s] Comprehensive Plant;]” (2) the County expected that four existing pump stations (all of which currently convey wastewater to Henrico and which “are expected to continue to do so for the next 7 to 10 years”) “would continue to serve their respective areas of the [C]ounty[;]” (B) upgrades to at least two of those existing pump stations could “allow for additional flow, if needed[;]” (4) the County “also indicated [that] a new pump station for the Powhite Creek basin may be constructed as early as 2007 to pump flow to Henrico or to the new [WWTP] in order to offload more flow from Henrico in the future[;]” and (5) the County “formally withdrew” its original permit application seeking authority to construct the TC Interceptor and represented that it had “removed [that component] from its Comprehensive Plan.” A.R., at 2657; 2715. The December 10 and 27 MFRs conclude by noting that, although “[t]he County does not claim that some portion of the [TC Interceptor] will never be built in the future,” it had “outlined a number of future options for handling sewage ... that do not involve the construction [of that component]” and had represented that it could “not justify spending $7 million for the [TC Interceptor] when [it has] much less expensive options to satisfy [its] needs for the next 7 to 10 years which can be phased in as needed.” Id. Upon those representations, Ms. Painter explained, the Corps “determined that [the] County ha[d] fully disclosed all of the activities that are reasonably related to the project and ... that the [JPA] is complete .... ” A.R., at 2657; 2715. That conclusion is articulated in the Corps’ April 4 MFR in the following terms: [T]he [Corps’] District Engineer determined ... that Hanover County has fully disclosed all of the activities that are reasonably related to the project, and that the application before the Corps is for a single and complete project with independent utility from the previously proposed [TC Interceptor] as well as from any future improvements to the conveyance of wastewater within the County. A.R., at 6. c. The Corps’ Public Interest Review And The Plaintiffs’ Comments Having determined that the County’s application was complete, and having issued public notice respecting the forthcoming regulatory review of the project described therein, the Corps set about to determine whether to authorize the County to proceed with construction of its revised project. On December 14, 2001, Ms. Painter visited the sites on which the components of the project would be built “in order to verify the wetland impacts of the previously proposed portions of the project and to evaluate the potential impacts of the newly proposed Lee Davis pump station.” A.R., at 6; 2674-75. At the conclusion of that site-visit, and as memorialized her (undated) Site Visit Report, Ms. Painter made the following recommendation: From field observations and desk top review, it can be concluded that the magnitude of the proposed and completed impacts to wetlands and waters of the U.S. are minimal and could be authorized by general permits. It appears that the proposed discharge outfall structure would qualify for Nationwide Permit # 7; the completed wetland impacts at the WWTP would qualify for Nationwide Permit # 39; and the proposed utility line activities at the Lee Davis pump station would qualify for Nationwide Permits # 12 and # 18. However, this preliminary determination is contingent upon verification that the project would meet the other terms and conditions of these Nationwide Permits as well as a review of comments received from state, federal and local agencies and the general public in response to the Corps’ Public Notice. A.R., at 2674-77 (emphasis supplied). Again, Ms. Painter noted that “[t]he originally proposed [TC Interceptor] has been replaced by the proposed Lee Davis [Alternative, therefore,] [t]he wetland impacts associated with the [TC Interceptor] are neither part of the project that is before the Corps nor are they in their entirety reasonably foreseeable cumulative impacts of the project.” A.R., at 6-7. It does not appear that the Corps ever informed the public (including the Plaintiffs) that, based upon its initial review, and contingent upon the receipt of certain information, it had concluded that the County’s revised project might qualify for NWPs. However, it seems clear that, even before it issued notice to the public seeking comments on the November 16 JPA, the Corps internally had arrived at a tentative decision (ie., a “preliminary determination [that was] contingent” upon certain conditions) that NWP verifications might be appropriate. Notwithstanding that fact, the record reflects that, over the next few months, the Corps continued to receive comments from the public, including the Plaintiffs, and proceeded with a thorough regulatory review of the County’s revised project. In particular, on January 18, 2002, the Corps conducted another field visit, this time for the purpose of meeting with the principal opponents of the County’s project (ie., the Plaintiffs and their counsel), at which those parties “outlined their concerns about water quality, inclusion of the [TC Interceptor] as part of the project, consideration of other alternatives^] and potential effects to anadromous fish in the Pamunkey River.” A.R., at 6; 2731-82. Ms. Painter’s January 31, 2002 Memorandum for the Record memorializes the “concerns and arguments” that the Plaintiffs raised during that January 18 field meeting. As noted, those concerns involved the issues whether operation of the County’s proposed project would unreasonably impair the Pamunkey River; whether the County had been “forthcoming with [its] actual intentions” respecting construction of the TC Interceptor; whether the County had chosen the best location for its proposed wastewa-ter discharge structure; and whether the County thoroughly had considered entirely different (ie., regional) alternatives to its wastewater treatment problem. Id. Further, on January 25, 2002, counsel for the Plaintiffs submitted to the Corps a twenty-six page letter discussing, in great detail, the Plaintiffs’ positions with respect to the County’s project, A.R., at 1613-38, as well as numerous other documents in support of those positions. A.R., at 1609-2068. The Plaintiffs advanced the following five main arguments: (1) the County’s application was incomplete and, therefore, should be rejected, because it did not include all of the activities that the County planned to undertake and that were reasonably related to the project — namely, it did not include the TC Interceptor; (2) in the alternative, if the County truly did not intend to construct the TC Interceptor, then the application must be denied because, in that event, the WWTP would not need to be constructed in wetlands at all (a fact which would cause the project to violate the Environmental Protection Agency’s “Section 404(b)(1) Guidelines”); (3) the County already had conceded that “less damaging alternatives to its outfall location are available”; (4) the project would result in environmentally damaging, and illegal, discharges into the Pamunkey River; and (5) the County had overstated its need for additional wastewater treatment capacity and had failed properly to consider reasonable alternatives to the project it has proposed. A.R., at 1613-14. Further still, and on the same day, plaintiff, Henry Ruffin Broaddus, wrote a letter to Ms. Painter in which he “urge[d][her] to deny [the County’s] application.” A.R., at 2162-67. Setting forth personal, scientific, and policy arguments against the County’s proposal (some of which echoed those that his attorney had advanced), Mr. Broaddus appealed to the Corps, as “the regulatory agency that is above the fray of local politics[,]” to look beyond the County’s representations. A.R., at 2167. d. The Corps’ Internal Deliberations And Continuing Dialogue With The Parties A January 29, 2002 internal Corps email contains information respecting a meeting that recently had taken place within the Corps, the subject of which was “Hanover County.” A.R., at 2854. The participants included several Corps representatives, including Ms. Painter and Colonel Hansen, as well as representatives of the United States Department of Justice. That e-mail states, in relevant part, as follows: The Colonel’s desire is that if the project qualifies for a NW then it should be authorized as such.... From the Colonel’s perspective, he does not want to prejudice Hanover County with an IP just because there is a threat of an additional lawsuit. He believes this would set a bad precedent and undermine the validity of NW authorization for projects that do indeed qualify. He would rather issue the NW if it’s the right thing to do and risk the lawsuit. As a compromise I suggested that, since the project is out on PN [public notice] and the comment period will close this week, we go ahead and complete the environmental and public interest review. Basically, we will use the results of the analyses to document that either the project has only minimal impacts, in which case we can issue the NW, or show that the impacts are more than minimal and the IP is necessary. The Colonel is OK with this .... I believe that as long as we complete and use the environmental analysis to determine whether or not the project has less than minimal impact and base our decision on that, we should be on good footing. This approach would place in the administrative record the environmental documentation to support whatever decision we eventually make. Id. On January 31, 2002, Ms. Painter sent an e-mail to a representative of the County requesting information “concerning the originally proposed [TC] Interceptor ... for the Corps’ review of the potential cumulative impacts of the County’s proposed ... project.” A.R., at 1575. Specifically, Ms. Painter sought information respecting the following topics: (1) “the present status of the [TC Interceptor] relating to the County’s Comprehensive Plant,] as well as any future actions regarding the Plan and future [Capital Improvement Projects;]” (2) whether, and on what dates, “developers for new subdivisions (such as the currently proposed Bell[ ] Creek)” might undertake construction of “some sections” of the TC Interceptor “or similar alignments in Totopotomoy Creek[;]” (3) whether, as suggested in certain comments that the Corps had received, “since land for the [TC Interceptor] easement has already been purchased (or condemned), the [TC Interceptor] will eventually be built[;]” and (4) “the current utility of the inflow pump station at the treatment plant site in relation to the originally proposed [TC Interceptor].” Id. i. The County’s Response To The Corps’ Questions The County responded to Ms. Painter’s request for information by letter dated February 1, 2002, in which it addressed each of the issues that Ms. Painter had raised. A.R., at 1506-12. Without going into exhaustive detail with respect to each of those issues, the County proffered the following answers to Ms. Painter’s questions. First, as to Ms. Painter’s question respecting the status of the TC Interceptor, the County responded that, as of November 28, 2001, its Board of Supervisors had “eliminated the [TC] Interceptor from the County’s Capital Improvement Plan ... and replaced it with the Lee Davis [Alternative].” According to the County, that meant that “all funding” for the TC Interceptor also had been eliminated, and that “[f]or all practical purposes, the project no longer exists-” A.R., at 1506. The County then explained the difference between two planning documents, its Comprehensive Plan and its Capital Improvements Plan which, in its estimation, had created some “confusion.” A.R., at 1507. The County described the former plan, which is updated every five years, as being only “conceptual in nature[.]” It noted that not all of the improvements or projects described or portrayed in its Comprehensive Plan will, in fact, come to fruition. Rather, “[a] variety of issues could eliminate or significantly change a facility that is shown conceptually in the Comprehensive Plan.” Id. As such, although that document “shows facilities that are believed to be necessary to implement” the County’s “smart growth” policy, it does not “precisely” locate, fund, or set the timing for such facilities, nor does it guarantee that any particular facility ever will be built. Id. In contrast, the County explained, the Capital Improvements Plan “is where the [County’s] Board of Supervisors actually approves funding for ‘real’ projects.” A.R., at 1508. That is to say, potential improvement projects are included in the Capital Improvements Plan only after the Board designates specific funds for those projects, and, in the County’s view, such potential projects “become actual projects” only at that time. Id. Thus, as noted above, it was the County’s position that “[w]hen the funding was eliminated for the [TC Interceptor], it ceased to be a County project.” Id. The County also discussed the Shelton Pointe Pump Station, which the County had built, and begun operation of, in early 1998 “[i]n order to provide sewer service” to a portion of its SSA that ... recently had [been] phased in. Id. Although it had built that pump station before “knowing the location of [the WWTP],” the County stated that, once it had done so, “it satisfied the need to provide wastewater service [to the area that the Shelton Point Pump Station serves] in support of the Comprehensive Plan.” Id. The County represented that “a sewer may never be required between Rural Point Road and the WWTP along Totopo-tomoy Creek, an area outside of the [SSA]. Sewage can be pumped from the Shelton Pointe Pump Station or another station to either Henrico County or to the new WWTP, if it is permitted and constructed.” Id. The author of the February 1 letter also represented that, at the County’s upcoming planning meeting, he would be “recommending that the section of the sewer line ... outside of the [SSA] be eliminated.” Id. Finally, he stated that: In terms of the [Capital Improvements Plan], I will be recommending improvements to facilities in the Lower Totopo-tomoy Creek Basin within the [SSA] on an as needed basis and in response to the actual development that occurs. This is just as I would do in any other part of the [SSA], At this time, the only funding that I anticipate recommending to the Board of Supervisors during the next several years is funding for an upgrade to the Shelton Pointe Pump Station, which is essentially the replacement of pumps and motor controls which are anticipated to be needed in 2-3 years, funding for oversize credits, and perhaps improvements to allow consolidation of several pump stations in the general vicinity of Route 301 and Toto-potomoy Creek. A.R., at 1508-09. Next, the County responded to the Corps’ request for information about certain portions of the TC Interceptor that “may be proposed by developers for new subdivisions (such as the currently proposed Bell Creek) .... ” A.R., at 1575. The County explained that, as it had discussed with the Corps at the [November 9, 2001] pre-application meeting, it “expected that there would be further projects constructed by developers within the Lower Totopotomoy Creek Basin,” that it “expected an application to be submitted for the Bell Creek Development in the immediate future[,]” and that it had made its design plans for the TC Interceptor available to the developer [of the Bell Creek] project “because [it] believed that [it] had selected the best alignment for any sewer project within the Totopotomoy Creek Basin.” A.R., at 1509. Moreover, the County stated as follows: [T]he County ha[s] entered into a development agreement for Bell Creek and ... the proffers for the project stated if the County did not build the [TC Interceptor], that the developer would have to build a sewer from Academy Creek to the Shelton Pointe Pump Station. We also informed the Corps ... that the County would be paying for part of the construction of this project in accordance with the development agreement and the County’s oversizing policy. These activities are all standard practice within the County. It is important to note that the development agreement was executed in November 2000 and the proffers ... for this project were submitted in October 2000.... The fact that the proffers recognized the fact that the County may not be building the [TC Interceptor] at this early date and the sewer service could be provided to the Bell Creek Development through the Shelton Pointe Pump Station, independent of the Toto-potomoy Creek Sewer Interceptor, demonstrates the independence of these projects. Id. (emphases supplied). The County explained that the Bell Creek project was the “only one [it was] currently aware of[,]” and that the developer of that project had informed the County that he hoped to have the homes in that development built, and occupied, by the fall of 2002, or “long before the County will have its WWTP project operating.” Id. It stated that the sewer envisioned by the developer would connect to the Shelton Pointe Pump Station, “which currently pumps to a trunk sewer that eventually goes to Henrico County for treatment!,]” and that it will continue to do so unless the County’s plans for the WWTP are approved, at which point sewage from the Bell Creek development could be conveyed to the WWTP. Id. The County also proffered the following additional information respecting the sewer project proposed by the developer of the Bell Creek project: [Although the Bell Creek trunk sewer is using a portion of the corridor that was originally developed for the [TC Interceptor], a 30" sewer is planned to be installed, not the 42" sewer that was proposed with the [TC Interceptor] project. The average flow capacity of this 30" sewer is approximately 4.8[mgd] which is less than half the average flow capacity of 12.0 mgd for the 42" sewer that was once proposed by the County. The Bell Creek trunk sewer is also designed to allow the wastewater to flow into the Shelton Pointe Pump Station whereas the [TC Interceptor] was designed to accept flow from upstream of the Shelton Pointe Pump Station. These are obviously different projects serving different needs.... The County has no plans to construct any portion of the [TC Interceptor] nor [is the County] aware of any other active development project that would require the construction of any portion of it. A.R., at 1510. Next, the County addressed the suggestion that its purchase or condemnation of land along the original intended route of the TC Interceptor evinced that, in fact, the County still intended to construct that project. The County’s response was that, although forty “of the easement[s] required for the [TC Interceptor] have been purchased by the County[,]” thirteen such easements “have not been obtained.” Id. The County explained that: There is not a continuous corridor for the [TC Interceptor] at this time and the County is not making any additional efforts to obtain additional easements. All of the easements that have been obtained were obtained through negotiations with property owners. No easements were condemned ... nor is there any plan to do this. The County Staff was preparing to ask the Board of Supervisors to begin condemnation proceedings for those easements that were outstanding but this was not done as the decision was made to cancel the project. Id. The County also noted that, within the SSA, it “often obtains utility easements during the development process that may be required to serve adjoining properties. Sometimes these easements are utilized and sometimes they are not.... [T]he fact that future development within the [SSA] may be able to utilize easements within this area for pump stations or collector sewers to serve individual developments is reason enough for the County to keep these particular easements at this time.” A.R., at 1510-11. But, it explained that, if it were to become apparent that a given easement never would be used, the County would “certainly consider vacating them on a case by case basis.” A.R., at 1511. Finally, the County responded to the Corps’ request for information concerning “the current utility of the inflow pump station [or “IPS”] at the [WWTP] in relation to the originally proposed [TC Interceptor].” A.R., at 1575. On that issue, the County explained as follows: The IPS served multiple functions including pumping wastewater from the [TC Interceptor] up to the WWTP; collecting and pumping plant process waster; and collecting, grindingf,] and pumping septage [sic] delivered to the WWTP by septage [sic] hauling contractors. The Lee Davis [Alternative], which replaces the [TC Interceptor], could discharge to either the IPS or directly to the WWTP screening facilities and each discharge point has its advantages and disadvantages. At this point it appears it will be more cost effective to have the Lee Davis ... facilities discharge directly to the WWTP screening facilities therefore the IPS is no longer needed to pump wastewater to the WWTP. The County ... has decided to halt any additional IPS construction and [is] proposing to abandon it. Although we will no longer be constructing the IPS, the wetlands impacts for the WWTP project are ... the same because the wetlands have already been taken and construction of required drainage improvements and erosion and sediment controls will still require impacting this same area. A.R., at 1511-12. ii. The Plaintiffs’ Comments Respecting The “Bell Creek” Project On February 11, 2002, counsel for the Plaintiffs sent a letter to the Corps in reference to a separate permit application that a private developer called The Hanover Group had submitted to the Corps on December 13, 2001. A.R., at 2194-98. The Hanover Group’s application sought the Corps’ authorization to discharge dredged or fill material in connection with its intended construction of a mixed-use development on approximately 300 acres of land located in the northeast portion of the County’s SSA. The Plaintiffs informed the Corps that the County’s Planning Commission had approved plans for the “Bluffs at Bell Creek” development on June 7, 2001, and that those plans included the construction of over 7,500 feet of gravity sewer line. The Plaintiffs also advised the Corps that over 2,200 feet of that sewer line, the construction of which was expected to result in substantial impact to wetlands, was planned to lie along the path of, and to utilize easements that the County had obtained for, the formerly proposed TC Interceptor. Id Construction of that 2,200 feet of sewer line, the Plaintiffs contended, was essentially the same as construction of the TC Interceptor and, inevitably, will lead the County to construct additional portions of that interceptor to convey wastewater from the Totopotomoy Creek basin directly to the WWTP. Id Accordingly, the Plaintiffs urged the Corps “to look beyond the ‘shell game’ being played by [the] County, with the assistance (whether or not knowing) of [T]he Hanover Group[]” and to recognize that “[t]he TC Interceptor — and all portions of it — are the County’s project[ ]” [and] must be included with the County’s other sewage treatment system improvements in the County’s currently pending permit application.” A.R., at 2198. iii. The Review Process Comes To A Close The record also contains a dialogue that took place through e-mail February 20, 2002 between Ms. Painter and Mr. Herzog. A.R., at 1589. First, Mr. Herzog e-mailed Ms. Painter “to verify that [the Corps] currently ha[s] all the information that has been requested from [the County].” Id Next, Ms. Painter responded to remind Mr. Herzog that he “had said [that he] wanted to provide a response to the comments submitted by [counsel for the Plaintiffs].” Id She noted that, although the County was not required to comment, the opportunity to do so was available. Finally, Mr. Herzog replied as follows: We reviewed all the public comment letters received by the [Corps], including the letter submitted by [counsel for the Plaintiffs], on February 7, 2002 at your office. We believe that we have addressed all of the major issues associated with the permitting of these projects raised in the public comment letters that were received as of this date. These issues have been addressed by both the information provided with the original permit application and the supplemental information submitted in response to the specific questions posed by your office. We appreciate being given the opportunity to review and respond to the public comment letters but, at this time, we are not planning on addressing any particular comment letter unless the [Corps] requests it. Id. On March 8, 2002, however, Mr. Herzog sent another e-mail to Ms. Painter, apparently in response to a question that she had posed respecting “available capacity at Henrico and the timing of the proposed WWTP.” A.R., at 1597. That e-mail states, in relevant part, as follows: Wastewater flows fluctuate and are highly dependent on weather. Exact predictions of sewage flow are not possible as precisely how many new customers will connect to the system and what future weather conditions will be are not known.... We believe that flows to Henrico are currently below our predictions primarily due to the dry weather conditions the entire region has been experiencing. As we are all aware, our region is currently in an extended drought but, this could change tomorrow. In 1998, wastewater flows to Hen-rico were 4.5 mgd, which was approximately 500,000 gpd over our projection for that year. Since 1998 we have added over 1,500 new customers to our sewage system and currently have approximately 4,000 zoned lots in inventory that could be developed and connected to the sewer system at anytime. Using an average daily flow of 350 gpd/unit, these 5,500 units would add 1.9 mgd to [the County’s] average flow. Id. (emphasis supplied). e. The Corps’ April 4, 2002 Memorandum For The Record On April 4, 2002, the Corps issued the April 4 MFR, its final decisional document, in which it explained that, and why, it had verified that the County could proceed with construction of its proposed project under the authority of four NWPs (numbers 7, 12, 18, and 39). A.R., at 1-65. In the section of the April 4 MFR entitled “Findings and Decision of the District Engineer”, the Corps states, in relevant part, as follows: The District Engineer has determined that the decision on this project is not a major Federal action significantly affecting the quality of the human environment. Therefore, no Environmental Impact Statement will be prepared. This finding is based on information contained in the [Corps’] evaluation of