Full opinion text
ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION WOODCOCK, District Judge. I. Introduction Northwest Bypass Group, Morton and Carolyn Tuttle, and Leslie Ludtke, allege that the United States Army Corps of Engineers (Corps) violated the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA), when it issued a permit pursuant to Section 404 of the CWA, allowing the City of Concord to fill 3.5 acres of wetlands to build a 4,300-foot connector road. In a comprehensive 19-count complaint spanning 140 pages, the Plaintiffs allege that the Corps committed numerous statutory violations. See generally Compl. (Docket # 1); Pis.’ Memo, of Law in Support of Motion for TRO and Prelim. Inj. at 17-19 (Docket #2) (Pls.’Mot.). II. Procedural History On September 15, 2006, this Court denied Plaintiffs’ motion for temporary restraining order. See Order (Docket # 46). The City began preparation of the roadway for construction of Phase II of the Northwest Bypass project. Plaintiffs moved for reconsideration on September 24, 2006 (Docket # 50), and filed an addendum to that motion on September 26, 2006 (Docket # 54). The several defendants opposed the motion for reconsideration. Plaintiffs filed a motion for leave to file a reply (Docket # 57), which this Court granted on October 31, 2006. See Order Granting Motion for Leave to File a Reply (Docket # 67). III. The Corps Decision In November, 2000, the City filed an application with the New Hampshire Department of Environmental Services (NHDES) for a wetland and water quality permit, beginning the complex approval process for Phase II of the project. The City also sought the requisite CWA section 404 permit from the Corps to fill wetlands in the path of the proposed Phase II. AR 1:137. On December 12, 2000, the Corps issued a public notice, soliciting comment on whether to approve the permit with respect to Phase II. Id.; AR 1:38. The NHDES held two public hearings, which the Corps’s regulatory project manager attended. Id. In addition, in response to the 2000 public notice, the Corps received and considered numerous public comments. AR 1:39-41. On January 10, 2006, the Corps completed an environmental assessment (EA) of the proposed project to determine whether an environmental impact statement (EIS) was necessary. See AR 1:32. The EA identified the basic purpose of the project: “to relieve traffic congestion and to allow for the safe and efficient flow of traffic in this quadrant of the city. Improved pedestrian safety is an inherent part of the basic project purpose.” Next, the Corps considered and rejected three alternatives. AR 1:34. The Corps determined that, “[f]rom our environmental assessment of the project we find that our decision to permit fill for this project is not a major Federal Action significantly affecting the human environment. Therefore, an EIS is not required and our Environmental Assessment will suffice for the purposes of compliance with NEPA.” AR 1:41. According to the EA, the Corps considered “all factors relevant to this proposal including cumulative effects” and concluded that “this project is not contrary to the public interest and that a Department of the Army permit should be issued.” Id. Consistent with their determined opposition to the project, the Plaintiffs have waged a full scale assault in this Court against the Corps’s approval. IV. Standard of Review A. Preliminary Injunction Standard This Court analyzes a request for a preliminary injunction through application of the following four well-established factors: (1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmov-ant if enjoined as contrasted with the hardship to the movant if no injunction issues; and, (4) the effect (if any) of the court’s ruling on the public interest. Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.2006) (quoting Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 11 (1st Cir.2004)); see also Puerto Rico Conservation Foundation v. Larson, 797 F.Supp. 1066, 1069 (D.P.R.1992). The party seeking relief bears the burden of demonstrating that these factors “weigh in its favor.” Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir.2003). This burden is a heavy one: “Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003) (reversing the denial of a preliminary injunction in a CWA permitting case); W. Ala. Quality of Life Coal. v. United States FHA, 302 F.Supp.2d 672, 679 (D.Tex.2004) (a grant of the preliminary injunctive remedy “must be supported by specific findings of the court.”). B. Arbitrary and Capricious Standard Because this is a review of an action by a federal agency — the Army Corps of Engineers — the standard of review is supplied by the Administrative Procedures Act (APA). See 5 U.S.C. § 702. Under the APA, a district court will uphold an agency’s decision unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” 5 U.S.C. § 706(2)(A); see also Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (“The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.”). The First Circuit explained that the task of a court reviewing agency action under the APA’s “arbitrary and capricious” standard is “to determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Dubois v. United States Dep’t of Agric., 102 F.3d 1273, 1284 (1st Cir.1996); see also Associated Fisheries of Maine v. Daley, 127 F.3d 104, 109 (1st Cir.1997) (explaining that an agency action is “arbitrary and capricious if the agency lacks a rational basis for adopting it — for example, if the agency relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contra-dieting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise.”); see also Penobscot Air Servs. v. FAA, 164 F.3d 713, 719 (1st Cir.1999) (“The task of a court reviewing agency action under the APA’s ‘arbitrary and capricious’ standard is to determine whether the agency has examined the pertinent evidence, considered the relevant factors, and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”). Conversely, an agency decision is not arbitrary or capricious if “the agency decision was based on a consideration of the relevant factors and there has not been ‘a clear error of judgment’.... ” Dubois, 102 F.3d at 1285 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). “The requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result and respond to relevant and significant public comments. However, neither requirement is particularly demanding.” Penobscot Air Servs., 164 F.3d at 719 n. 3 (internal citations and quotation marks omitted). The Court’s review under this standard is “highly deferential,” in that the agency action is presumed valid. Associated Fisheries, 127 F.3d at 109. In other words, this Court “is not empowered to substitute its judgment for that of the agency.” Overton Park, 401 U.S. at 416, 91 S.Ct. 814; see also 33 Charles A. Wright & Charles H. Koch, Jr., Federal Practice & Procedure § 8334 (“Arbitrary and capricious review communicates the least judicial role, short of unreviewability, in the word formula system.”). Notwithstanding the deferential standard of review, “it is not a rubber stamp.” Dubois, 102 F.3d at 1285. Rather, the Court “must undertake a ‘thorough, probing, in-depth review’ and a ‘searching and careful’ inquiry into the record.” Id. (quoting Overton Park, 401 U.S. at 415-16, 91 S.Ct. 814). In carrying out its task under the APA, the scope of the Court’s review will include the whole administrative record. See 5 U.S.C. § 706; Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (district court review “is to be based on the full administrative record that was before the [agency head] at the time he made his decision”); Cousins v. Sec’y of United States Dep’t of Transp., 880 F.2d 603, 610 (1 st Cir.1989). C. Substantial Evidence: 5 U.S.C. § 706(2)(E) Plaintiffs suggest this case calls for the higher “substantial evidence” standard of review than the typical APA case. See Pis. ’ Mot. to Reconsider at 5. They argue that a “record-based analysis ... fail[s] the rigorous standard, in judicial scrutiny of regulatory decisions, that a court find ‘substantial evidence’ to support a decision ....” Id. Plaintiffs cite Justice Kennedy’s concurrence in the recent Supreme Court case Rapanos v. United States, 547 U.S. -, 126 S.Ct. 2208, 2251, 165 L.Ed.2d 159, 207 (2006) (“The conditional language in [the Corps’s assessments] ... could suggest an undue degree of speculation, and a reviewing court must identify substantial evidence supporting the Corps’ claims, see 5 U.S.C. § 706(2)(E).”). The Corps objects, asserting that the substantial evidence standard is applicable only to rule-making and formal adjudications. Federal Defs.’ Memo, in Opp’n to Mot. to Recons. Order on Pls. ’ Mot. for TRO at 3 n. 1. The Plaintiffs have raised a confusing issue. “Arbitrary and capricious” and “substantial evidence” are not the same. Professors Wright and Koch have pointed out: “Courts have recognized that the substantial evidence standard requires greater judicial scrutiny of an agency decision than does the arbitrariness standard. Thus, on the continuum ..., this word formula communicates judicial scrutiny somewhere between de novo and arbitrariness review.” 33 Charles A. Wright & Charles H. Koch, Federal Practice and Procedure § 8333 (2006). As Justice Kennedy did in his concurrence, some courts have applied both standards to their review of an agency action. For example, in its decision in Carabell v. United States Army Corps of Engineers, the Sixth Circuit described the standard of review: Where, as here, the district court’s order is based on its review of an administrative agency’s final decision, our review is governed by the Administrative Procedures Act (“APA”) The APA provides that a court shall set aside an agency’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”.... An agency’s factual findings are conclusive if supported by substantial evidence. ... 391 F.3d 704, 707 (6th Cir.2004) (citations omitted). See also Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 61 (4th Cir.1991) (“Our review, like that of the district court, is limited to a determination of whether the Corps’ decision was arbitrary, capricious, otherwise not in accordance with law, or unsupported by substantial evidence.”); Hoosier Envtl. Council, Inc. v. United States Army Corps of Eng’rs, 105 F.Supp.2d 953, 965 (D.Ind.2000) (“In an action for review of the grant of a § 404 permit, courts must examine the administrative record to determine whether the COE made an arbitrary or capricious decision, abused its discretion, acted contrary to law or regulation, or lacked the support of substantial evidence.”). The vast majority of courts, however, focuses solely on the arbitrary and capricious standard as the proper one for review of agency action. Dubois, the most recent First Circuit case addressing the review of an agency action under NEPA and the CWA, states unequivocally: [T]he appropriate scope of review for both NEPA claims and CWA claims is the standard set forth in the APA. 5 U.S.C. § 706(2)(A)(1994) (citations omitted). Under the APA, “the reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).” Dubois, 102 F.3d at 1284. Nowhere does Dubois mention the substantial evidence standard. See also Utahns v. United States Dep’t of Transp., 305 F.3d 1152, 1164 (10th Cir.2002); Preserve Endangered Areas of Cobb’s History v. United States Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir.1996); Advocates for Trans. Alternatives, Inc. v. United States Army Corps of Eng’rs, 453 F.Supp.2d 289 (D.Mass.2006). The substantial evidence standard of § 706(2)(E) applies only if it involves a “case subject to sections 556 and 557 of [title 5] or otherwise reviewed on the record of an agency hearing provided by statute.” 5 U.S.C. § 706(2)(E). 5 U.S.C. § 556 applies to “hearings required by [5 U.S.C. § 553 or 554] to be conducted in accordance with this section.” 5 U.S.C. § 553 involves procedures for rulemaking, not applicable here. 5 U.S.C. § 554 applies to cases of “adjudication required by statute to be determined on the record after opportunity for an agency hearing. ...” 5 U.S.C. § 557 applies “when a hearing is required to be conducted in accordance with section 556.... ” See Camp v. Pitts, 411 U.S. 138, 141, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (“[NJeither the National Bank Act nor the APA requires the Comptroller to hold a hearing or to make formal findings on the hearing record when passing on applications for new banking authorities.... [T]he proper standard for judicial review of the Comptroller’s adjudications is not the ‘substantial evidence’ test which is appropriate when reviewing findings made on a hearing record ....”) (citations omitted); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (“Review under the substantial-evidence test is authorized only when the agency action is taken pursuant to a rule-making provision of the Administrative Procedure Act itself, 5 U.S.C. § 553 (1964 ed., Supp. V), or when the agency action is based on a public adjudicatory hearing.”); Penobscot Air Servs., 164 F.3d at 718 n. 1 (The “substantial evidence” standard is “specifically applicable only in certain specifically delineated contexts, including rule-making and formal adjudications.”). The CWA, however, does not mandate that the Corps “hold a formal hearing or [] make formal findings of fact on the hearing record” when passing on a CWA permit application. The same is true for the Corps’s review under NEPA. See 42 U.S.C. § 4332; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 370-78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Thus, by its own terms, as explained in Camp, § 706(2)(E) does not apply. This Court confesses some confusion as to why Justice Kennedy and some courts have incorporated the substantial evidence standard in judicial review of agency decisions. There may be something different about those cases not present here. But, if the substantial evidence standard applies along with the arbitrary and capricious standard, this would essentially eviscerate the arbitrary and capricious standard, since substantial evidence — as a heights ened standard and more generous to the challenger — would trump the arbitrary and capricious standard for purposes of judicial review of the sufficiency of the evidence before the agency. Justice Kennedy’s reference to substantial evidence is dictum and not binding on this Court. Absent a new holding from the Supreme Court or First Circuit, the doctrine of stare decisis applies. The last word on the appropriate standard for review for NEPA and CWA claims is the “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law” standard the First Circuit applied in Dubois. It is this standard that this Court will apply. This Court concludes the substantial evidence standard of 5 U.S.C. § 706(2)(E) does not apply and the arbitrary and capricious standard of 5 U.S.C. § 706(2)(A) does. V. Discussion A. Likelihood of Success on the Merits The importance of the first of the four factors comprising the preliminary injunction analysis cannot be understated: “The sine qua non of [preliminary injunction analysis] is whether the plaintiffs are likely to succeed on the merits: if the moving party cannot demonstrate that he is likely to succeed on his quest, the remaining factors become matters of idle curiosity.” Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.1993); Borinquen Biscuit Corp. v. M.V. Trading Corp., 443 F.3d 112, 115 (1st Cir.2006). With respect to this prong of the test, “a court’s conclusions ... are to be understood as statements of probable outcomes.” Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991). To satisfy this prong of the preliminary injunction test, Plaintiffs must show that they are likely to succeed in showing that the Corps’s decision to grant the City a permit to fill wetlands was arbitrary and capricious. As the Plaintiffs rely on asserted violations of federal statute to meet the arbitrary and capricious standard, the Court will consider each statute separately. 1. CWA The Clean Water Act (CWA) was a “bold and sweeping legislative initiative,” Dubois, 102 F.3d at 1294 (citation omitted), enacted to “restore and maintain the chemical,, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). “This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, ‘the word “integrity” ... refers to a condition in which the natural structure and function of ecosystems [are] maintained.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (quoting H.R.Rep. No. 92-911, at 76 (1972)). In contrast to NEPA’s “focus on process,” the CWA “is substantive, focusing on the integrity of the nation’s water, not the permit process.” Dubois, 102 F.3d at 1294 (citation and internal punctuation omitted). Pursuant to Section 404 of the CWA (33 U.S.C. § 1344), the Corps “may issue permits, after notice and opportunity for public hearings, for the discharge of dredged or fill materials into navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). Before issuing a fill permit, the Corps must insure that the proposed action complies with CWA § 404(b)(1) guidelines issued by the Environmental Protection Agency (EPA). 33 C.F.R. § 320.4(a)(1). These guidelines — outlined in the EPA regulations — provide that the Corps shall not issue a fill permit “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant environmental consequences.” 40 C.F.R. § 230.10(a). In addition, the EPA guidelines prohibit a fill permit if it would result in “significant degradation of the waters of the United States,” taking into account any potential adverse effects on human health or welfare, wildlife and aquatic ecosystems, or recreational, esthetic, and economic values. 40 C.F.R. § 230.10(c). If the Corps determines that the proposed action complies with the Section 404(b) requirements, it “will grant the permit unless issuance would be contrary to the public interest.” 33 C.F.R. § 323.6(a). The “public interest review” involves a weighing of the benefits of the proposed activity against the foreseeable detriments. 33 C.F.R. § 320.4(a)(1). The “permit will be granted unless the district engineer determines that it would be contrary to the public interest.” Id. a. Balancing Analysis The Plaintiffs’ claims under the CWA occupy several counts of the Complaint. In Count I, Plaintiffs allege a violation of the CWA’s requirement of weighing the benefits against the detriments, asserting that the Corps’s balancing was “arbitrary and capricious because the agency could not plausibly have found that the project would accomplish its central claimed benefit.” Compl. ¶ 105. According to the EA, the principal intended benefit of Phase II was “to relieve traffic congestion and to allow for the safe and efficient flow of traffic in this quadrant of the city. Improved pedestrian safety is an inherent part of the basic project purpose.” AR 1:34. In their Complaint, Plaintiffs claim the Corps relied on traffic studies that considered the potential impact of the development of both Phase II and Phase III of the Northwest Bypass project and failed to assess the impact of Phase II alone. Compl. ¶¶ 98, 103. They state that when only Phase II is considered, the traffic studies demonstrate an increase, not a decrease in traffic congestion. Id. at 99. By relying on studies that incorporate Phase III and ignoring studies that focus solely on Phase II, they claim the Corps’s decision was arbitrary and capricious. Id. The Defendants, on the other hand, have pointed to several traffic studies directed to the impact of Phase II alone, which the Corps reviewed in the permitting process. See Federal Defs.’ Memo. in Opp’n to Mot. for TRO and Prelim. Inj. at 9, 21-23 (Docket # 20) (Corps Opp’n); Defendant City of Concord’s Objection to Mot. for TRO and Prelim. Inj. with Request for Expedited Hearing at 15-17 (Docket # 18) (City’s Opp’n). To the extent the Plaintiffs contend that there was no evidence of the likely impact of Phase II alone on traffic congestion, the Plaintiffs are simply wrong. Next, Plaintiffs claim that a report by their expert, Laurie Rauseo, refutes the City’s studies. Compl. ¶ 99. Ms. Rauseo opines that building Phase II would actually increase the traffic volumes on Pleasant Street and Clinton Street and Plaintiffs assert that the City’s consultant agreed with her analysis. Id. ¶¶ 99, 100-101. The Corps responds, arguing “while more vehicles will use Phase II to access the Hospital (leading to higher volume overall), congestion will decline on other roads like South Fruit Street and Pleasant Street because traffic volume on those roads will decline.” Corps Opp’n at 23 (emphasis in original); see also AR 6:18-19; City’s Opp’n at 17 & n. 13. Notwithstanding the allegations in the Complaint, the record reflects that Domenic J. Ciavar-ro, the City’s traffic consultant, disagreed with many of Ms. Rauseo’s views. See AR 6:14-24 (letter from Mr. Ciavarro to Ms. Martha Drukker dated September 12, 2001). The existence of opposing views does not render the Corps’s decision arbitrary and capricious. See Franklin Sav. Ass’n v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1144 (10th Cir.1991) (“Conflicting expert opinion, however, is not sufficient to allow a reviewing court to conclude the agency decision was arbitrary, capricious or an abuse of discretion, nor is such evidence sufficient to overcome the presumption of regularity and correctness afforded to the appointment decision.”). There is sufficient evidence in the record to support the Corps’s position that the project would accomplish its principal goal: to relieve traffic congestion and to promote public safety. The Plaintiffs have not demonstrated a likelihood of success on the merits of Count I. b. Alternatives Analysis In Count II, Plaintiffs allege that the Corps’s issuance of the Section 404 permit was arbitrary and capricious because the evidence before the Corps failed to rebut “the very strong presumption of the existence of practicable alternatives to the proposed discharge which do not involve a discharge into a wetland.... ” Compl. ¶ 142. In particular, Plaintiffs claim that the EA overstated the impraeti-cality of the no build option, Compl ¶ 115, and that the Corps failed to analyze alternatives to the specific project under consideration: “to build Phase II alone and to close Silk Farm Road/Dunbarton Road.” Id. ¶ 116. Under 40 C.F.R. § 230.10(a)(3), there is a presumption that alternatives exist when the proposed project is not “water dependent.” The Phase II construction does not “require access or proximity to ... the special aquatic site in question to fulfill its basic purpose.” 40 C.F.R. § 230.10(a)(3). Thus, “when the basic purpose of a project may be accomplished without ‘access or proximity’ to a ‘special aquatic site ... practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.’ ” Greater Yellowstone Coal., 321 F.3d at 1262 n. 12 (quoting 40 C.F.R. § 230.10(a)(3)). In other words, “under the CWA, it is not sufficient for the Corps to consider a range of alternatives to the proposed project: the Corps must rebut the presumption that there are practicable alternatives with less adverse environmental impact.” Id.; see also Nat’l Wildlife Fed’n, v. Whistler, 27 F.3d 1341, 1344 (8th Cir.1994) (“This presumption of practicable alternatives is very strong, creating an incentive for developers to avoid choosing wetlands when they could choose an alternative upland site .... ” (citations and internal quotation marks omitted)). Therefore, it is presumed that there existed alternatives to the chosen course of action, because the Phase II project does not depend on an “aquatic site” for its existence. The question becomes whether any of the existing alternatives were practicable, such that the discharge of fill could be avoided. The Corps contends that it weighed alternatives, including different routes and the “no build” option, but rejected them. Corps Opp’n at 22. The administrative record supports the Corps’s position. The EA contains a section entitled “Alternatives: Section 404 Mitigation MOA Requirements.” See AR 1:34. The Corps measured alternatives against the basic project purpose, which was “to relieve traffic congestion and to allow for the safe and efficient flow of traffic in this quadrant of the city.” Id. The Corps considered (1) alternate alignments of the roadway, which were found to have greater direct impact on the wetlands and forest fragmentation; and, (2) an “[ujpgrade alternative,” wherein the City would widen existing roads and add more lanes. Id. According to the Corps, the alternate alignments would “be more damaging.” AR 1:34-35. The Corps characterized the first alternative — and the eventual winner — as “crossing at a narrow point and nipping the edge of the existing wetlands.” AR 1:84. The second alternative would have cut “straight across a wide segment of wetland,” resulting in a “greater direct impact and greater impact from the point of view of forest fragmentation.” Id. A third alternative — upgrading existing city streets — was found impractical because of the large number of properties affected. Id. Regarding the “no build” option, the Corps observed that “[u]pgrade alternatives, to the extent that they might relieve congestion by widening the roads and adding more lanes for cars, would be of dubious value in achieving the pedestrian safety that is a part of the purpose of the project and would have occasioned the need for taking portions of numerous properties along South fruit (sic) Street and Pleasant Street.” Id. The Corps also determined that “[ujpgrades of existing streets were not practicable because of the number of properties that would be effected (sic) in such an urbanized part of the city.” AR 1:34-35. The Corps concluded that the proposed roadway was the “least environmentally damaging practicable alternative.” AR 1:35. Therefore, while alternatives are presumed to exist under CWA, the Corps overcame the presumption by evaluating alternative alignments and the no-build option and concluding they were not practicable. Plaintiffs are not likely to demonstrate that the Corps’s conclusion was arbitrary or capricious. c. Diminished Deference for Prejudgment Although the title of Count III announces a cumulative impact claim, the first several paragraphs argue that “the Army Corps decision must be accorded diminished deference due to issues prejudgment.” See Compl. ¶¶ 144-164. Citing Davis v. Mineta, Plaintiffs argue that federal decisionmakers are accorded diminished deference where they “prejudged the ... issues.” 302 F.3d 1104, 1112 (10th Cir.2002); see Int’l Snowmobile Mfrs. Ass’n v. Norton, 304 F.Supp.2d 1278, 1291 (D.Wyo.2004). Plaintiffs allege that the Corps prejudged the issue when it took part in a “decisive private meeting” on August 15, 2001, attended by NHDES, the City’s engineer and attorney, and representatives of other federal agencies. Compl. ¶ 150. From the Complaint, it appears that the principal basis for the Plaintiffs’ allegation of prejudgment is a newspaper article published in the Concord Monitor, which states that Dr. Richardson, an NHDES hearings officer, was leaning toward denial, and was subsequently overruled by “Dr. Richardson’s NHDES administrative superiors.” Id. Later, the Plaintiffs allege NHDES hosted a private meeting with the Corps to “formulate a strategy to get Phase II approved” and received “clear implicit assurance of ultimate Army Corps approval.” See Compl. ¶¶ 150-51. The City strenuously objected to the Plaintiffs’ characterization of the meeting. See City’s Opp’n at 21 n. 18. At oral argument, the City’s attorney again argued that the meeting was public. See Hearing Transcript at 140-41 (stating that there was nothing “nefarious” about the meeting). The City points out that the Corps’s familiarity with this case dates back to 1992, and Corps staff — including senior project manager Richard Roach— has “attended every public hearing and had access to the entire State record.” City’s Opp’n at 19 n. 17. Based merely on the allegations in the Plaintiffs’ Complaint and the record before it, this Court has no greater reason to accept the Plaintiffs’ allegations than to credit the Defendants’ denials. As the burden rests with the Plaintiffs, it cannot be said, based on this record, that Plaintiffs are likely to succeed on the merits of this part of their claim. Plaintiffs also argue for diminished deference because they allege the Corps “failed to conduct an independent review of [Mr. Roach’s] work to insulate itself from the biases toward a FONSI [it] reflect[s].... ” Compl. ¶ 157. In support, Plaintiffs again cite Davis, 302 F.3d 1104. Davis dealt with a NEPA challenge of a decision by the Department of Transportation and the Federal Highway Administration to prepare an Environmental Assessment (EA) leading to the issuance of a Finding of No Significant Impact (FONSI) instead of an Environmental Impact Statement (EIS). Id. at 1109. The court of appeals remanded the case for an entry of preliminary injunction barring further road construction. Id. at 1126. Distinct from the case at bar, the EA in Davis was prepared by Horrocks, an engineering firm, and was subsequently adopted by the agency. Id. at 1110. In Davis, the Tenth Circuit characterized Horrocks’ analysis as “tainted” and concluded that the “record establishes that [the agency] failed to conduct a sufficient independent review of Horrocks’ work to insulate itself from the biases toward a FONSI reflected in Hor-rocks’ draft EA.” Id. at 1113. Here, the Corps itself prepared the EA. Thus, even if Plaintiffs’ assertions are accurate — that is, that the Corps failed to independently review the recommendation of its own senior project manager’s recommendations— Davis does not support their argument. The record here does not sustain Plaintiffs’ burden to demonstrate pre-judgment by the Corps. d. Other Impacts 1. The Cumulative Impact Plaintiffs allege, in Counts III, IV, and V, that the Corps failed to consider the cumulative impact of the project as required by 33 C.F.R. § 320.4, 40 C.F.R. § 230, and 40 C.F.R. § 1508.25(a). Compl. ¶ 165-223. In other words, Plaintiffs charge the Corps with “incremental segmentation,” meaning that the Corps did not consider the extent of the entire Northwest Bypass project, but rather Phase II as a segmented piece of the whole. According to the Complaint, the Corps’s only mention of cumulative impact is a “short conclusory sentence” in the EA, id. ¶ 166, and the Plaintiffs allege that the Corps’s decision relies on the City’s assurance that it has “no present plans” to construct Phase III of the project. Id. ¶ 177. Plaintiffs further claim that the construction of Phase II would have a “coercive effect” as to the construction of Phase III. Id. ¶ 170. In sum, Plaintiffs are concerned that the Corps omitted from its analysis important environmental impacts that could potentially result from the construction of Phase III, id. ¶ 185, and certain alternatives to Phase III — such as “no build” — that could be made obsolete by an approval of Phase II. Id. ¶ 187. The Corps responds that Phase II has “separate utility” from the rest of the project, and that “the City has no present plans to construct Phase III, has requested authorization to fill only those wetlands in the path of Phase II, and would build Phase II whether or not Phase III is ever built.” Corps Opp’n at 11; AR 1:32. Under 40 C.F.R. § 1508.25, part of the Council on Economic Quality (CEQ) regulations promulgated pursuant to NEPA, an agency is required to consider connected, cumulative, or similar actions in the same environmental impact statement. Id. The regulations define “[Connected actions” as those that are “closely related and therefore should be discussed in the same impact statement.” 40 C.F.R. § 1508.25(a)(1). According to the regulation, actions are connected if they: “(i) Automatically trigger other actions which may require environmental impact statements; (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously; [or] (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a)(l)(i)-(iii). “Cumulative actions” are those that, “when viewed with other proposed actions have cumulatively significant impacts.” 40 C.F.R. § 1508.25(a)(2). Finally, similar actions, “when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together ... in the same impact statement.” 40 C.F.R. § 1508.25(a)(3). Segmentation is improper when the segmented project “ ‘has no independent justification, no life of its own, or is simply illogical when viewed in isolation.’ ” One Thousand Friends v. Mineta, 364 F.3d 890, 894 (8th Cir.2004) (quoting Save Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1139 (5th Cir.1992)). The First Circuit has said that the agency “need not speculate about all conceivable impacts, but it must evaluate the reasonably foreseeable significant effects of the proposed action. In this context, reasonable foreseeability means that the impact is sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.” Dubois, 102 F.3d at 1286 (citations and internal punctuation omitted). Based on this standard, the Phase II project alone — taking away the existence of Phase I or the possibility of a Phase III — has a clear independent utility: to relieve traffic congestion, promote public safety, and provide a more direct route to the hospital. Moreover, the relationship between Phase II and Phase III is much too speculative to mandate Phase III consideration. In short, Phase III may never be built and the City has represented that it has no current plans to do so. This Court cannot conclude that something which may never happen is reasonably foreseeable and Phase III does not otherwise fit the regulatory definitions. 2. Secondary Impacts Plaintiffs assert that the Corps should have considered the impact Phase II will have on other roadways in that area of the city, asserting: “The EA/SOF nowhere discusses the potential secondary effects of a potential realignment of Birch Street with Phase II.... ” Pis. ’ Mot. at 18. The Corps responds that it is only required to consider indirect effects of an agency action that are “reasonably foreseeable.” Corps Opp’n at 11. Indeed, the CEQ regulations define “indirect effects” as those “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8. The First Circuit has said that agencies “need not consider potential effects that are highly speculative or indefinite.” Sierra Club v. Marsh, 976 F.2d 763, 768 (1st Cir.1992). The administrative record reflects that the City responded to a public comment on this very topic made by Plaintiffs’ counsel, Mr. Blakeney. AR 6:149. Mr. Blakeney asserted that the project would have an impact on the First Baptist Church, which had applied to the City for permits to construct a church and school on Clinton Street. Id. The City responded that “the Bypass is not planned for any extensions southerly of Clinton. Birch Street is an unpaved, seasonally maintained street which has little likelihood of being upgraded as it is surrounded by land owned by the State, a City recreation parcel acquired under the protections of the Land and Water Conservation Fund, and a private tract that is subject to restrictions as open space.” Id. The City’s statement — made in response to public comments the Corps received — is contained in the administrative record the Corps reviewed. As such, it cannot be said that they failed to consider secondary effects of the Phase II construction. Additionally, given the City’s response, the Plaintiffs have not demonstrated that realignment is reasonably foreseeable. Because the secondary impact on Birch Street is speculative or indefinite at best, Plaintiffs have not met their burden of showing a likelihood of success on the merits of this aspect of the claim. 3. Secondary Development — City of Davis Within Count IV, Plaintiffs advance the argument that the Corps decision was arbitrary and capricious in that it did not consider the potential impacts of secondary development. Compl. ¶209; Pis.’ Mot. at 18. The Corps counters: “With much of the areas as wetlands, within state ownership, and/or subject to conservation easements under the project’s mitigation plan, the Corps reasonably concluded that these lands were not likely to be subject to development pressure.” Corps Opp’n at 12. Indeed, the Corps’s EA itself points out why this result is unlikely: “Two acres of plowed farm fields will be paved over. The remainder of farm fields will likely remain in agricultural use for some time as they are in state ownership. However, being adjacent to another road may make the farm fields next to the road easier to develop, [if] the state chooses to use the land for another purpose.” AR 1:36-37. Plaintiffs claim this case is similar to a Ninth Circuit case, City of Davis v. Coleman, 521 F.2d 661 (9th Cir.1975). The Court disagrees. Coleman addressed a “proposal to build a major interchange in an agricultural area near the edge of urban development....” Id. at 676. But, “the main purpose of the interchange ... [was] to provide access to the Kidwell area for future industrial development.” Id. at 677. The interchange, located near the campus of the University of California at Davis, would have opened thousands of acres of farmland to “research and high technology concerns,” the first stage of which the agency promoting the project had already begun to advertise. Id. at 667-68. Davis noted “growth-inducing effects of the Kidwell Interchange project are its raison d’etre, and with growth will come growth’s problems: increased population, increased traffic, increased pollution, and increased demand for services such as utilities, education, police and fire protection, and recreational facilities.” Id. at 675. Yet, the California Department of Public Works and the Federal Highway Administration concluded that “the environmental impact of the proposed interchange will be insignificant.” Id. Under those circumstances, pretending that there would be no secondary effects beyond the construction of the intersection itself did not comply with NEPA. Id. at 677. Davis is a far cry from this case. Davis itself was careful to observe that, “[w]e do not say that secondary impacts are always more important, or even that they must always be considered in an EIS. Here it is clear that the secondary impacts may be significant and they must therefore be included in the EIS.” Id. at 676 n. 18 (internal citation omitted). Here, the purpose of Phase II is not to promote development, but rather to ease traffic congestion and provide access to the hospital. Unlike Davis, there is no evidence in this record that Phase II is a stalking horse for a more elaborate scheme of development. In the case at bar, although the Corps acknowledged the potential for some development, it noted that much of the remaining area is wetlands, that the state itself owns a significant portion of the land adjacent to the Phase II roadway, and that a portion of the lands will be subject to conservation easements under the project’s mitigation plan. AR 1:36-37. Based on this record, the Court concludes that the Plaintiffs are not likely to succeed on the merits of their claim that the Corps was arbitrary and capricious by failing to consider secondary development. e. Public interest review Plaintiffs’ Count VI contains another CWA claim: that the Corps’s decision is arbitrary and capricious because it failed “to properly weigh or consider all relevant factors under 33 C.F.R. § 320.4(a).” Compl. ¶ 293. Plaintiffs make the novel argument that “a comparison of the respective lengths of the agency’s written descriptions of adverse versus beneficial impacts is a reasonable measure of a proposal’s adverse versus beneficial impacts.... ” Compl. ¶ 265. Under this argument, for example, because the section on safety (which was listed as the sole beneficial impact) was fairly brief in comparison with the discussion of the detrimental impact on the wetlands, the Plaintiffs allege that the Corps’s decision was arbitrary and capricious. This argument equates wordiness with substance, a demonstrably false premise. Although the CWA and 33 C.F.R. § 320.4 require the Corps to evaluate the impact to public interest factors, these statutory and regulatory provisions neither mandate what the Corps must put in the EA nor what the Corps’s decision should be. What is important for measuring the Corps’s decision against the arbitrary and capricious standard is whether the Corps performed an analysis and took into account the appropriate factors. Here, the EA contains a checklist that references each statutory factor and the Corps has noted its assessment as to whether, in its judgment, the project will have a beneficial, adverse, or negligible effect for each factor. AR 1:36. The Corps’s EA engaged in a further written analysis of certain, more relevant factors: The chief benefit of the project will be the increased safety of pedestrians and the reduced congestion of traffic which will result from providing an alternate additional means of vehicular access to the Concord Hospital complex from 1-89 and Clinton Street. The chief detriment will be the loss of 3>é acres of wetland and a small part of the countryside just outside the existing edge of the city which will be incorporated into the more urbanized part of the city by being divided from the country by a city road. The construction of a new segment of road will have a slight to moderate adverse affect on a number of factors of concern to the public interest. These factors have been weighed and considered. It is our evaluation that while these loses (sic) are a concern, there is not ... sufficient reason for denial of a Federal Clean Water Act Permit considering that there will be other important public interest benefits. AR 1:41-42. Because the Corps expanded on some factors does not mean it failed to consider others. The Court concludes that the Plaintiffs have not shown that they are likely to succeed on the merits of this aspect of their CWA claim. f. Regulatory Guidance Letter Another claim under the CWA is that, in addressing wetlands mitigation, the Corps did not follow the provisions of its own regulatory guidance letter (RGL). Compl. ¶ 328; Pis. ’ Mot. at 18. The record contains RGL 02-2, which states: “Districts may give compensatory mitigation credit when existing wetlands, or other aquatic resources are preserved in conjunction with establishment, restoration, and enhancement activities.... In exceptional circumstances, the preservation of existing wetlands or other aquatic resources may be authorized as the sole basis for generating credits as mitigation projects.” AR 7:24. Plaintiffs argue that the Corps’s EA “does not identify any ‘exceptional circumstances’ as would warrant acceptance only of simple preservation of existing wetlands resources [as wetlands mitigation] in accordance with those binding provisions.... ” Pis. ’ Mot. at 18. Plaintiffs’ main obstacle is that, contrary to their contention, RGLs are not binding. “[N]ot all agency policy pronouncements which find their way to the public can be considered to be regulations enforceable in federal court.” Chasse v. Chasen, 595 F.2d 59, 62 (1st Cir.1979). In deciding whether a particular agency policy pronouncement may properly serve as the basis for jurisdiction, the courts examine “(I) the statutory authority for the promulgation, and (II) the formality of the promulgation.” Id. RGLs are “issued without notice and comment and do not purport to change or interpret the regulations applicable to the section 404 program ... [and] are not binding, either upon permit applicants or Corps District Engineers.” Envtl. Def. v. United States Army Corps of Eng’rs, No. 04-1575(JR), 2006 WL 1992626, at *7, 2006 U.S. Dist. LEXIS 47969, at *22 (D.D.C. July 14, 2006); see Hobbs v. United States, 947 F.2d 941, 1991 WL 230202, *4-5 (4th Cir.1991) (concluding that the EPA’s wetland delineation manuals are interpretive guidance documents without the force of law). The Corps further argues that, in any event, it followed RGL 02-2 in this case. Corps Opp’n at 13. The Corps points out that the “exceptional circumstances” language does not operate as a bar to the use of preservation-only mitigation. However, under RGL 02-2, if preservation alone — as opposed to creation of wetlands — is proposed as the sole basis for mitigation, the Corps must consider whether the preserved wetlands “perform important physical, chemical or biological functions, the protection and maintenance of which is important to the region” and whether they are under “demonstrable threat of loss or substantial degradation from human activities” not caused by the applicant or otherwise avoidable. Id.; AR 7:24-25. The Corps notes that the preserved areas perform functions important to the Turkey River Basin and absent the mitigation plan, some of the preserved parcels could have been developed without a Section 404 permit. Id.; AR 1:35. The Corps concludes that the preservation plan thereby complied with the requirements of RGL 02-2. The Plaintiffs have not satisfied their burden of showing a likelihood of success on the merits of Count VII. g. Section 1341(d) compliance Count VIII alleges that the Corps’s permit requires the City to comply with two “substantially conflicting effluent limitations.” Compl. ¶ 339; Pis. ’ Mot. at 18. The gist of this claim is that the amount of land the City is authorized to fill differs under the state and federal permits. The state water quality certification (WQC) authorized the City to fill 4.39 acres, while the federal Section 404 permit (issued by the Corps) limits filling to 3.5 acres. Id. ¶¶ 334, 336. Plaintiffs claim that this is a violation of 33 U.S.C. 1341(d), and thus is arbitrary and capricious. The administrative record confirms Plaintiffs’ factual assertions. However, the Corps explained the reason for the discrepancy: The original alignment for Phase II required filling 4.39 acres, because it avoided the Hillside Condominiums, and the State issued a water quality certification for this alignment, concluding that it would not impair water quality. However, the City revised the alignment to pass closer to those condominiums, so as to fill fewer wetlands, and the revised permit application to the Corps reflected the lower acreage. Because the Corps’ authorization is to fill fewer acres, there is no conflict with the State’s water quality certification. Corps Opp’n at 14 (citations omitted). The Corps also asserts that the City must meet the standards set forth in the WQC irrespective of the number of acres that are actually filled. Id. Given the common sense explanation for the difference between the state and federal acreages, the Court concludes that the Plaintiffs have not shown a likelihood of success on the merits of Count VIII. h. Ecological Issues Plaintiffs’ final claim under the CWA, contained in Count IX, is that the Corps did not comply with EPA regulations set forth in 40 C.F.R. §§ 230.11 and 230.12(b), which require the Corps to “determine in writing the potential short-term or long-term effects of a proposed discharge of dredged or fill material on the physical, chemical, and biological components of the aquatic environment....” 40 C.F.R. § 230.11. The administrative record reflects that attached to the EA was a document entitled “Short Form — Section 404(b)(1) Guidelines Compliance Determination.” AR 1:44-48; Corps Opp’n at 15. This document, headed Factual Determination (230.11), is a 4-page checklist signed by Richard Roach, finding that there is a minimal potential for short or long-term environmental effects of the proposed discharge for each category. AR 1:47. In light of this, Plaintiffs have not demonstrated a likelihood of success on the merits with respect to Count IX. 2. NHPA — Counts X-XVI Section 106 of the National Historical Preservation Act (NHPA) requires that before issuing any license, a federal agency must “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.” 16 U.S.C. § 470f. In addition, the agency must “afford the Advisory Council on Historic Preservation (ACHP) ... a reasonable opportunity to comment with regard to such undertaking.” Id. In other words, “Section 106 is characterized aptly as a requirement that agency deci-sionmakers ‘stop, look, and listen,’ but not that they reach particular outcomes.” Narragansett Indian Tribe v. Warwick Sewer Auth., 334 F.3d 161, 166 (1st Cir.2003). As the First Circuit observed in Narragansett, the obligation to “consult” can “lead to differing views and to conflicting judicial interpretations.” Id. However, the NHPA “delegates to the (ACHP) to promulgate regulations interpreting and implementing § 106” and the ACHP has “issued detailed regulations to give substance to § 106’s consultation requirements.” Id. The federal regulations promulgated by the ACHP provide the framework for an agency to assess the impact of a federal action on historic properties. The agency must first determine whether the proposed federal action “is a type of activity that has the potential to cause effects on historic properties.” 36 C.F.R. § 800.3(a). If so, the agency must identify the State Historic Preservation Officer (SHPO) “to be involved in the section 106 process.” Id. Next, the agency, in consultation with the SHPO, must “make a reasonable and good faith effort” to identify the historic properties that could be affected by the proposed action. 36 C.F.R. § 800.4. Third, the agency considers, with respect to any identified historic properties, the “criteria of adverse effect.” 36 C.F.R. § 800.5. Fourth, in consultation with the SHPO, the agency official “shall plan for involving the public in the section 106 process.” 36 C.F.R. § 800.3(e). Finally, the agency must try to resolve the adverse effects by developing and evaluating alternatives to the project “that could avoid, minimize, or mitigate adverse effects on historic properties.” 36 C.F.R. § 800.6(a). This final section also addresses the so-called “memorandum of agreement,” the culmination of the process. “A memorandum of agreement executed and implemented pursuant to this section evidences the agency official’s compliance with section 106 and this part and shall govern the undertaking and all of its parts. The agency official shall ensure that the undertaking is carried out in accordance with the memorandum of agreement.” 36 C.F.R. § 800.6(c). Over the course of seven counts in the Complaint, Plaintiffs allege numerous violations of the NHPA by the Corps. To satisfy its burden for the preliminary injunction, Plaintiffs must show that they are likely to succeed on the merits that the Corps failed to follow the NHPA procedure, and such failure rendered its decision arbitrary and capricious. As a threshold matter, Plaintiffs identify the Corps’s CWA permit as the federal action that is tethered to the NHPA claims. Compl. ¶ 353. The SHPO is the New Hampshire Division of Historical Resources. Compl. ¶ 362. a. Count X Plaintiffs’ general NHPA claim — contained in Count X — alleges that the Corps failed to consider alternatives, did not determine whether the project would affect any properties eligible for the National Register, did not explain why the criteria for adverse effect were inapplicable, and did not involve the public. Compl. ¶¶ 367-71. Essentially, Plaintiffs argue that the Corps did not follow the procedure set forth in Section 106 and the implementing regulations. Plaintiffs also complain that the EA did not describe the affected historic properties, “including information on the characteristics that qualify them for the National Register,” and did not explain “why the criteria of adverse effect were found applicable or inapplicable.” Pis.’ Mot. at 18. Preliminarily, the Corps raises a standing argument, asserting that, with the exception of the Tuttle House, Plaintiffs have not alleged any injury-in-fact. Corps Opp’n at 16. But, with respect to White Farm, the Complaint alleges that Leslie Ludtke uses the trails system which is part of that historic property. Compl. ¶ 7. Standing with respect to the remaining National Register property — the Pleasant View Home' — and the three non-register properties (Dunbarton Road, Carmelite Monastery, and Turkey River/Turkey Pond Basin) is more questionable. However, for independent reasons, the Court concludes that the Plaintiffs failed to meet their burden of showing a likelihood of success with respect to the NHPA claims. b. Count XI — Tuttle Home According to the Complaint, the Corps committed several violations of § 106 of the NHPA, “by failing to make a reasonable and good faith effort to involve the Tuttles and consider their views,” Compl. ¶ 397, by failing to make “information available to the public” and failing to provide “an opportunity for members of the public to express their views,” Compl. ¶ 398, and “by failing to make a reasonable and good faith effort to adequately minimize or mitigate the adverse effects on the Tuttle House in the final Memorandum of Agreement (MOA).” Compl. ¶ 400. The administrative record does not support these allegations. Rather, the record reflects that the Tuttles were consulted early in the process. On October 6, 2000, the Corps, along with other city and state officials, met with the Tuttles and their attorney to discuss the relocation of their home. AR 3:57-58. Various relocation sites were considered and the relocation process was explained. Id. On March 12, 2001, the Corps wrote the Advisory Council on Historic Preservation (ACHP) in Washington, informing them that the City had applied for a Section 404 permit and that three National Register properties, including the Tuttle House, would be adversely affected. AR 3:47. A public hearing was held in April 2001. AR 3:1. After several years of negotiations with the Tuttles, the Tuttles decided they were simply too old to move. Id. On December 4, 2004, a Memorandum of Agreement was signed by the Corps, the SHPO, and the City, outlining plans for the Tuttle Home. AR 3:3-7. The Tuttles were not signatories. AR 3:1. However, observing that the City “is determined to proceed, even if it requires they take the house by eminent domain,” the Corps issued a section 404 permit. Id. Contrary to Plaintiffs’ position, the administrative record confirms that the Corps complied with the consultation regulations of NHPA and does not suggest a likelihood of success of Plaintiffs’ claim that the Corps violated § 106 of the NHPA with respect to the Tuttle Home. c. Count XII — White Farm Regarding the White Farm, Plaintiffs allege that the Corps violated NHPA § 106 by failing to take into account or mitigate the “significant, extensive and permanent adverse effects upon the White Farm.... ” Compl. ¶ 415. In particular, Plaintiffs allege that construction of Phase II will wreak havoc on the drainage tile system that lies beneath the surface of White Farm and protects it from “significant periodic saturation.” Id. ¶¶ 416-17. In essence, Plaintiffs claim that all criteria of adverse effect found in 33 C.F.R. § 800.5(a)(2) are implicated by the construction of the roadway, id. ¶ 419, and that the Corps failed to “evaluate and resolve these adverse effects.” Id. ¶ 420. The administrative record reveals that the Corps was aware of the historic significance of the White Farm. The EA expressly refers to the farm, though in the context of the impact of the road itself. AR 1:37. After the Corps’s public comment period, Martha L. Drukker, City Engineer, wrote the Corps on April 9, 2001, to respond to certain public comments and she attached a letter, entitled “Response by the City of Concord to Comments Received by the ACOE During the Public Comment Period for the NW Bypass Application,” which in part states: Those drainage tile systems in the White Farm agricultural fields that will be interrupted by the Bypass will be replaced and reconnected to assure continued proper drainage for agricultural use. The State Division of Forests and Lands which manages the White Farm on behalf of the State has been involved in the review of the designs to insure the continuity of drainage. AR 2:306. The Corps had this information before it issued the Section 404 permit. Plaintiffs’ overriding concern is that the EA lacked a discussion of the impact on the tile drainage system. See Pis. ’ Mot at 18. The Corps responds that, because the tile drainage system was not endangered in any significant way, it was unnecessary to set forth any mitigation in the MOA. Corps Opp’n at 19. In addition, the Corps emphasizes that there is nothing in the NHPA regulations that requires the Corps to prepare an EA or EIS. Id. at 20. Rather, the agency must make sure that its findings are “supported by sufficient documentation to enable any reviewing parties to understand its basis.” 36 C.F.R. § 800.11(a). The administrative record demonstrates that the Corps was aware of the tile drainage system, had received assurances from the City regarding both the minimal impact the project would have on the system and replacement and reconnection of the system once construction was completed as well as a promise to involve the state of New Hampshire, which manages the Farm, in any designs to assure continuity of drainage. The Court concludes that, with respect to White Farm, the Plaintiffs have not shown a likelihood of success on the merits. d. Count XIII — Pleasant View Home The Pleasant View Home is the third National Register property and the basis of Plai