Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION; AND ORDER SETTING INJUNCTION DAVID ALAN EZRA, District Judge. On February 11, 2008, the Court heard Plaintiffs’ Motion for Preliminary Injunction. Paul H. Achitoff, Esq., and Koalani L. Kaulukukui, Esq., appeared at the hearing on behalf of Plaintiffs; Luther L. Hajek and S. Jay Govindan of the Department of Justice appeared at the hearing on behalf of Defendants. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion and ORDERS the injunction described herein to issue effective immediately. BACKGROUND I. Factual and Procedural History On January 23, 2007, the Navy issued a Programmatic Environmental Assessment/Overseas EA (“First EA”) for its proposal to conduct up to twelve undersea warfare exercises (“USWEX”) in the Hawaiian Islands Operating Area between January 2007 and January 2009. USWEX is a series of advanced antisubmarine warfare (“ASW”) exercises to be conducted by deploying west-coast based strike groups and Hawaii ported ships. (First EA, Ex. 4 at 1-1, attached to Pis.’ Mot. for Prelim. Inj.) The objective of USWEX is to enhance the proficiency of naval surface, subsurface, and air forces to counter the threat of quiet enemy submarines in coastal waters. (Id.) During USWEX, one to five surface ships, equipped with mid-frequency active (“MFA”) sonar and with the aid of helicopters and aircraft, coordinate a search for one or more submarines. (Id. at 2-3.) Each exercise lasts roughly 72 to 96 hours and involves between 139.5 and 222 hours of active MFA sonar use. (Id.) MFA sonar is currently the most effective method for detecting quiet diesel-electric submarines used by potentially hostile nations. (Unclassified Decl. of David Yoshihara ¶¶ 6-11 (“Unclassified Yoshihara Decl.”), attached to Defs.’ Mot. in Opp.’n.) The United States Navy considers training intensively in realistic conditions at sea is to be critical for developing MFA sonar skills and preparing for conditions that would be encountered in actual combat conditions. (Id. ¶¶ 21-22.) Specifically, training in the Hawai'i range provides unique value that cannot be replicated elsewhere and allows deploying strike groups to hone their sonar and other tactical skills prior to entering potentially hostile waters. (Id. ¶ 21.) Active sonars generate and emit acoustic energy in order to obtain information about a distant object from the reflected sound energy. (First EA at 2-5.) Advanced MFA sonar involves the discharge of omnidirectional “pings” and then the rapid scanning of a receiving beam to provide directional and range information. (Id.) While different kinds of MFA sonar units are proposed to be utilized during USWEX, the most powerful ones, on surface ships, generate sounds up to 235 decibels (dB). (Id.) Marine mammals, notably whales and dolphins, have a keen sense of hearing that allows them to forage for food, find mates, bond with offspring, communicate, navigate, and avoid predators. At least 26 species of marine mammal frequent Hawaii's waters, the most abundant of which are rough-toothed dolphins, dwarf sperm whales, Fraser’s dolphins, and sperm whales. Seven species listed as endangered occur in the area, including the humpback whale, North Pacific right whale, sei whale, fin whale, blue whale, sperm whale, and Hawaiian monk seal. (First EA at 4^40). Every year between November and April, thousands of humpback whales migrate to Hawaiian waters to breed, calve, and nurse their young. (January 23, 2007 Biological Opinion (“First BiOp”), Ex. 5 at 25, attached to Pis.’ Mot. for Prelim. Inj.) High level acoustic exposures have been demonstrated to adversely affect marine mammals, resulting in injuries including ruptured hearing organs, behavior modification, and, arguably, the accumulation of harmful nitrogen gas embolisms from rapid surfacing. It is alleged that MFA sonar may have been a causative factor in a number of mass stranding events involving marine mammals occurring over the past decade. The use of MFA sonar is considered a plausible, if not likely, contributing factor to a mass stranding of up to 200 melon-headed whales in Hanalei Bay, Kauai, following naval exercises conducted by U.S. and Japanese vessels during Rim of the Pacific exercises (“RIMPAC”) 2004. (Hawaiian Melon-headed Whale Mass Stranding Event of July 3-4, 2004 (“Hanalei Report”), Ex. 8 at 2, attached to Pis.’ Mot. for Prelim. Inj.) The Navy and National Marine Fisheries Service’s (“NMFS”) investigation of a 2000 mass stranding in the Bahamas concluded that Navy sonar was the most plausible source of trauma. (Joint Interim Rep. Bahamas Marine Mammal Stranding (“Bahamas Report”), Ex. 7 at ii, attached to Pis.’ Mot. for Prelim. Inj.) The Navy’s First EA examined potential acoustic effects on marine mammals based on criteria set forth in the Marine Mammal Protection Act (“MMPA”) and the Endangered Species Act (“ESA”) for military readiness activities. (First EA at 4-12.) Level A harassment includes any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild. (Id.) Level B harassment is defined as any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behavioral patterns are abandoned or significantly altered. (Id.) The First EA classified effects leading to physical injury or harm (“Permanent Threshold Shift” or “PTS”), such as permanent or temporary hearing loss, as Level A harassment, and classified effects causing temporary behavioral disruption or harassment (“Temporary Threshold Shift” or “TTS”) as Level B harassment. (Id. at 4-13.) Based primarily on studies conducted on captive animals, the First EA proposed a Level A threshold of between 195 to 215 dB, a Level B threshold of between 190 and 195 dB, and a sub-TTS or non-behavioral disturbance level of 190 dB or less. (Id. at 4-13-4-14.) In light of the growing body of literature suggesting that wild, naive marine mammals are behaviorally affected at significantly lower levels than captive animals, NMFS, however, recommended a sub-TTS level of 173 dB. (Id. at 4-15.) The First EA considered both the Navy’s and NMFS’ alternative levels. Using NMFS’ 173 dB criteria and without factoring in mitigation measures, the Fust EA concluded that there would be a total of 30,699 sub-TTS marine mammal exposures, 222 TTS exposures, and no PTS exposures per year. (Id. at 4-24.) Using the Navy’s 190 dB threshold, the First EA found that there would be 1,585 sub-TTS exposures and the other numbers remained static. (Id. at 4-25) On January 23, 2007, NMFS issued the First BiOp, determining that USWEX was not likely to jeopardize the continued existence of threatened or endangered species. (First BiOp at 79.) NMFS also issued an Incidental Take Statement (“ITS”), which authorized the “take” of 11,299 endangered whales per year. (Id.) NMFS determined that this level of anticipated take was not likely to result in jeopardy to the species. (Id.) The ITS set forth terms and conditions by which the Navy had to comply including but not limited to: (1) the implementation of measures reducing the probability of exposures; (2) the development of a monitoring program (by March 31, 2007) to provide an estimate of actual exposure events, observable responses by marine mammals, and the effectiveness of the Navy’s mitigation measures; and (3) an obligation for the Navy to continue to consult with NMFS regarding MFA sonar and its effects on marine mammals. (Id. at 79-80.) On February 2, 2007, the Navy issued its first Finding of No Significant Impact (“First FONSI”) for USWEX. The First FONSI concluded that the exercises would result in: (1) no significant impacts to biological or cultural resources under the National Environmental Policy Act (“NEPA”); (2) no significant harm to resources in the global commons under Executive Order 12114; (3) no destruction or adverse modification of any critical habitat in accordance with the Endangered Species Act; (4) a potential for Level B harassment of marine mammals (with negligible effects on marine mammal species or stocks); (5) a “may affect” determination for endangered species; (6) no adverse impact to essential fish habitat in accordance with the Magnuson-Stevens Fishery Conservation and Management Act; and (7) consistency to the maximum extent practicable with the Hawaii Coastal Zone Management Program, Chapter 205A, Hawaii Revised Statutes (“HRS”). (First FONSI, Ex. 3 at 3, attached to Pis.’ Mot. for Prelim. Inj.) During April of 2007, the Navy conducted two of its proposed six annual USWEXs in Hawaiian waters. Shortly thereafter, two pygmy sperm whales washed up on Hawaiian beaches, one on the island of Lanai and one on Maui. On May 16, 2007, Plaintiffs filed a Complaint for Declarative and Injunctive Relief, alleging that Defendants violated NEPA, 42 U.S.C. §§ 4321-4370(f), the ESA, 16 U.S.C. §§ 1531-1599, the Coastal Zone Management Act (“CZMA”), 16 U.S.C. §§ 1451-1466, and the National Marine Sanctuaries Act (“NMSA”), 16 U.S.C. §§ 1431-1445C-1. On August 22, 2007, Plaintiffs filed the instant Motion for Preliminary Injunction (Doc. # 15), in which they argue that they had a high likelihood of success on each of their four claims, the harm from USWEX was potentially irreparable, and that an injunction should therefore issue. Specifically, Plaintiffs contend that: (1) the Navy failed to provide NEPA required public notice and opportunity to comment on the First EA; (2) the Navy’s EAs are substantively flawed and inadequate; (3) the Navy must prepare an Environmental Impact Statement (“EIS”); (4) NMFS’ First BiOp was inadequate; (5) the Navy ignored mandatory consistency procedures under the CZMA; and (6) the Navy’s use of MFA sonar is not exempt from the NMSA consultation requirement. On September 17, 2007, Defendants filed a Motion to Defer Briefing Schedule (“Motion to Defer”) (Doc. # 20) on the Injunction Motion pending the completion of a public comment period to be initiated on the First EA and the issuance of a revised EA on or around October 15, 2007. On September 20, 2007, this Court heard Defendants’ Motion to Defer and established a briefing schedule that allowed the parties to defer briefing on Plaintiffs’ NEPA claims until after the completion of the revised EA. The Navy opened a public comment period for the First EA on September 21, 2007, and, on September 26, 2007, issued the Revised BiOp, which corrected what NMFS called “minor inconsistencies and errors” contained in the First BiOp. (Revised BiOp at 2-3.) The Revised BiOp came to the same substantive conclusions and included the same terms and conditions for the ITS. (Id. at 78-82.) Pursuant to the Court’s briefing schedule, Defendants filed their motion in opposition to Plaintiffs’ Injunction Motion on September 27, 2007 (Doc. #27), discussing all but Plaintiffs’ NEPA claims. Plaintiffs replied on October 4, 2007 (Doc. # 37). On October 15, 2007, the Navy issued a new EA (“Revised EA”) and FONSI (“Revised FONSI”). The Revised EA clarified and revised the First EA’s analysis of the CZMA and contained analysis of the potential environmental impacts of USWEX based on the public comments received on the First EA. (Revised EA, Ex. 13 at es-1, attached to Pis.’ Mot. for Prelim. Inj.) The Revised FONSI indicated that the Navy had received 11 submissions containing approximately 97 comments, which were subsequently analyzed and incorporated into the analysis of the Revised EA. (Revised FONSI, Ex. 15 at 5 (page numbers supplied by Court), attached to Pis.’ Mot. for Prelim. Inj.) The Navy determined that none of the comments altered its January 2007 determination that USWEX would not have a significant effect on the quality of the human environment. (Id.) The Revised EA and FONSI concluded that there was no threat of significant harm to the environment and, thus, an EIS was not required. (Id.) On October 18, 2007, the Honolulu Council of the Navy League (the “Navy League”) asked the Court for leave to file an amicus curiae brief, which this Court granted. In its brief, the Navy League argued that the MMPA was intended to be the exclusive vehicle for protecting marine mammals and therefore displaced NEPA and other environmental statutes, thus depriving the Court of jurisdiction on the instant matter. The Court, on November 1, 2007, ordered the parties to brief the issues raised by the Navy League by November 9, 2007. On November 1, 2007, Plaintiffs filed their Supplemental Motion for Preliminary Injunction (Doc. # 45) addressing the Revised EA and associated NEPA issues. On November 7, 2007, Defendants filed their opposition (Doc. # 48), also addressing the deferred NEPA issues. Plaintiffs replied on November 14, 2007 (Doc. # 57). A hearing on Plaintiffs’ Motion for Preliminary Injunction was scheduled for November 20, 2007. On November 15, 2007, however, Defendants informed the Court that the November USWEX had concluded and that the next USWEX was not scheduled until summer of 2008. Accordingly, the Court denied without prejudice Plaintiffs’ motion for preliminary injunction as moot on November 16, 2007 (Doc. # 61) (“November Order”). On January 3, 2008, the Court held a status conference, at which Defendants stated that the USWEX schedule had been revised and that the next exercise would occur in March 2008. That same day, the Court, via minute order (Doc. #64), set aside the November Order, reinstated the Injunction Motion, and set it for hearing on February 11, 2008. In addition, the Court set a supplemental briefing schedule regarding discovery and potential mitigation measures. At the February 11, 2008 hearing, this Court provided the parties with a list of written questions for further briefing. Defendants submitted their response to the Court’s questions on February 15, 2008 (Doc. # 89) and the Plaintiffs submitted their response on February 20, 2008 (Doc. # 92). II. NRDC v. Winter II Background In NRDC v. Winter, 807CV-00335-FMC, 2007 WL 2481037, (‘Winter II") environmental groups brought an action against the Secretary of the Navy and other federal defendants seeking declaratory and injunctive relief against the Navy’s use of MFA sonar in training exercises proposed to occur in the coastal waters of California. On June 22, 2007, the plaintiffs filed a motion for preliminary injunction. On August 7, 2007, the California District Court issued a broad blanket preliminary injunction blocking the proposed training exercises. The Navy appealed and moved for an emergency stay pending appeal. A motions panel of the Ninth Circuit issued the emergency stay of the district court ruling, finding that the district court erred: (1) in not giving proper weight to the public interest of war preparedness, and; (2) in fashioning, and failing to explain, an overly broad absolute injunction not narrowly tailored to achieve a balancing of the equities of the parties. NRDC v. Winter, 502 F.3d 859 (9th Cir.2007). On November 13, 2007, a different panel of the Ninth Circuit vacated the stay and held that a narrowly tailored injunction setting forth additional mitigation measures to reduce the harmful effects of MFA sonar while still allowing the Navy to conduct the scheduled training was appropriate. The Ninth Circuit remanded the matter to the district court instructing it to narrow its injunction appropriately, while keeping the emergency stay in place for a training exercise that was currently ongoing or for ten days from the date of the order, whichever was earlier. NRDC v. Winter, 508 F.3d 885 (9th Cir.2007). On January 3, 2008, the district court issued a modified preliminary injunction. NRDC v. Winter, 530 F.Supp.2d 1110. On January 9, 2008, the Navy moved for a stay of the injunction pending appeal, arguing that many of the mitigation measures imposed by the injunction prevented effective training. On January 10, 2008, the district court issued a revised order, adding specific exceptions to some of the mitigation measures. On January 14, 2008, the district court denied the Navy’s motion for stay pending appeal. The Navy appealed the district court’s modified injunction and, on January 15, 2008, requested an immediate stay from the Ninth Circuit. Earlier that day, President Bush signed an exemption under the CZMA, 16 U.S.C. § 1456(a)(1)(B), and the Council of Environmental Quality (“CEQ”) approved emergency alternative arrangements under its NEPA regulations, 40 C.F.R. § 1506.11. The Ninth Circuit immediately remanded the stay motion to the district court. See NRDC v. Winter, 513 F.3d 920 (9th Cir.2008). Later that day, the Navy moved to vacate the preliminary injunction or, in the alternative, a partial stay in the district court relative to certain mitigation measures. The district court granted that motion on an interim basis and set a briefing schedule on the Navy’s motion to vacate the injunction. (NRDC v. Winter, 8:07-cv- 00335-FMC-FMOx, Ex. 22, attached to Defs. Second Supplemental Opp. to Pis.’ Mot. for Prelim. Inj.) The plaintiffs filed an opposition to the motion to vacate on January 22, 2008, challenging both the Presidential exemption and the CEQ’s action. The Navy replied on January 25, 2008, and oral argument occurred on January 30, 2008. On February 4, 2008, the district court denied the Navy’s motion to vacate or stay the injunction. See NRDC v. Winter, 527 F.Supp.2d 1216 (C.D.Cal.2008). The Navy noticed its appeal on February 6, 2008. Oral argument on this appeal occurred on February 27, 2008. STANDARD OF REVIEW I. Injunctive Relief Standard Injunction is an equitable remedy, the issuance of which is appropriate only where the intervention of a court of equity is essential in order to protect property rights against injuries otherwise irremediable. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at an adjustment and reconciliation between the competing claims. Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944). In such cases, the court “balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.” Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944). “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould [sic] each decree to the necessities of the particular case.” Hecht v. Bowles, 321 U.S. at 329, 64 S.Ct. 587. The traditional bases for injunctive relief are irreparable injury and inadequacy of legal remedies. High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir.2004) (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). The Ninth Circuit has established criteria for the issuance of injunctions. Under the traditional method, a court may grant a preliminary injunction if a plaintiff shows: (1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest (in certain eases). Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1158 (9th Cir.2006). Alternatively, a court may grant a preliminary injunction if a plaintiff demonstrates either a combination of probable success on the merits and the possibility of irreparable harm or that serious questions are raised and the balance of hardships tips sharply in his favor. Id. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862-63 (9th Cir.2007). They are not separate tests but rather the outer reaches of a single continuum. Id. In issuing an injunction the court must balance the equities between the parties and give due regard to the public interest. High Sierra Hikers Ass’n, 390 F.3d at 642 (citing Amoco Prod. Co., 480 U.S. at 542, 107 S.Ct. 1396). The Ninth Circuit recently clarified this position as it relates to the issuance of injunctions to stop military training for the purpose of protecting marine mammals, holding that the district court is “required to consider, not only the balance of hardships as between the plaintiffs and the Navy as an Executive Branch agency, but also the public interest in having a trained and effective Navy.’’ Winter, 502 F.3d at 862 (internal quotations omitted and emphasis added). In the context of NEPA, irreparable injury flows from the failure to evaluate the environmental impact of a major federal action. Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985). While there is no automatic issuance of an injunction for a violation of NEPA, the presence of strong NEPA claims gives rise to more liberal standards for granting an injunction. High Sierra Hikers Ass’n, 390 F.3d at 642 (quoting American Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir. 1983)). “If environmental injury is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco Prod. Co., 480 U.S. at 545, 107 S.Ct. 1396. Furthermore, an “[ejnvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Id. Thus, where there is a strong claim that NEPA has been violated, and environmental injury is sufficiently likely, “the balance of harms will usually favor the issuance of an injunction to protect the environment.” Id. II. The Administrative Procedure Act Standard Agency decisions are reviewed under the Administrative Procedure Act (“APA”) and may be set aside if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). This is a deferential standard and courts must presume that an agency action is valid. Sierra Club v. Marsh, 976 F.2d 763, 769 (1st Cir.1992). The relevant inquiry is whether the agency “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Pyramid Lake Paiute Tribe v. U.S. Dep’t of Navy, 898 F.2d 1410, 1414 (9th Cir.1990) (citation omitted). DISCUSSION I. Plaintiffs’ Motion for Preliminary Injunction Plaintiffs have asked this Court to issue a preliminary injunction prohibiting the Navy from using MFA sonar during the remaining USWEXs, the next of which is now scheduled for March 2008, based on Defendants’ alleged violations of NEPA, the CZMA, and the NMSA. For reasons set forth in more detail below, the Court finds that Plaintiffs have a high likelihood of success on their NEPA and CZMA claims, but not their NMSA claim. As recently made clear by the Ninth Circuit in Winter II, however, the Court must be mindful of all established criteria for the issuance of an injunction, namely the possibility of irreparable injury, the balance of hardships, and, importantly here, the clear public interest in matters of national defense. A. Probability of Success on the Merits 1. NEPA Plaintiffs contend that Defendants violated NEPA by: (1) failing to provide pub-lie notice and opportunity to comment on the First EA; (2) preparing substantively flawed and inadequate EAs; and (3) failing to prepare an EIS despite the potential for the challenged exercises to have a significant impact on the environment. Congress passed NEPA in 1970, declaring “a national policy which will encourage productive and enjoyable harmony between man and his environment.” 42 U.S.C. § 4321. The purpose of NEPA was “to promote efforts which will prevent or eliminate damage to the environment,” as well as “to enrich the understanding of the ecological systems and natural resources important to the Nation.” Id. NEPA does not contain substantive requirements that dictate a particular result; instead, NEPA is aimed at ensuring agencies make informed decisions and “contemplate the environmental impacts of [their] actions.” Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (concluding that NEPA “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.”) In pursuit of these goals, NEPA mandates that all federal agencies take a “hard look” at the environmental consequences of all proposed “major Federal actions significantly affecting the quality of the human environment” through the preparation of an EIS. 42 U.S.C. § 4332(2)(C). In addition to aiding internal agency decision-making, publication of an EIS “also serves a larger informational role. It gives the public the assurance that the agency has indeed considered environmental concerns in its decisionmaking process, and, perhaps more significantly, provides a springboard for public comment.” Robertson, 490 U.S. at 349, 109 S.Ct. 1835 (internal quotations and citations omitted). The Ninth Circuit has interpreted this provision as requiring agencies to prepare an EIS “where there are substantial questions about whether a project may cause significant degradation of the human environment.” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir.2005). The Council on Environmental Quality (“CEQ”) and other federal agencies’, including the Navy’s, regulations implement NEPA. See, e.g., 40 C.F.R. §§ 1500 et seq.; 32 C.F.R. §§ 775 et seq. Under these regulations, an agency may prepare an EA to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4, 1508.9(b); see also 32 C.F.R. § 775.2(c). The EA must identify all reasonably foreseeable impacts, analyze their significance, and address alternatives. 40 C.F.R. §§ 1508.8, 1508.9, 1508.27. To trigger the requirement for an EIS, a plaintiff need not show that significant effects will in fact occur; raising “substantial questions whether a project may have a significant effect is sufficient.” Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir.1998) (internal citation omitted and emphasis added). If, based on the EA, the agency concludes that the proposed actions will not significantly affect the environment, it may issue a FONSI and forego completion of an EIS. Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir.1988); 40 C.F.R. § 1501.4(e). Agencies must complete an EA and, as necessary, an EIS before reaching a final decision or making an “irreversible and irretrievable commitment of the availability of resources.” Envtl. Def. Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir.1979). a. Public Notice and Comment Plaintiffs contend that the Navy violated NEPA by failing to provide the public with opportunity to provide input while the agency was preparing the First EA. Defendants counter that the Navy’s circulation of the First EA for public comment on September 14, 2007, the subsequent analysis of the comments received as á result of this notice, and the production of the Revised EA satisfied the public involvement aspect of NEPA. The Court agrees with Plaintiffs and finds that they have a high likelihood of success on the merits of this claim. One of NEPA's fundamental purposes is to “ensure that federal agencies are informed of environmental consequences before making decisions and that the information is available to the public.” Citizens for Better Forestry v. U.S. Dept. of Agriculture, 341 F.3d 961, 970-71 (9th Cir.2003) (citing Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir.2000) (emphasis added)). “NEPA’s public comment procedures are at the heart of the NEPA review process.” California v. Block, 690 F.2d 753, 770 (9th Cir.1982). “NEPA procedures must insure that environmental information is available to public officials and citizens before ... actions are taken,” and “[a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 40 C.F.R. § 1500.1(b). Regardless of whether they prepare an EA or EIS, federal agencies must “[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures,” and “[sjolicit appropriate information from the public.” 40 C.F.R. § 1506.6(a),(d). The Ninth Circuit has interpreted NEPA’s regulations to mean that the public must be given an opportunity to comment on draft EAs and draft EISs. Citizens for Better Forestry, 341 F.3d at 970 (quoting Anderson v. Evans, 314 F.3d 1006, 1016 (9th Cir.2002)). While there is no minimum level of public comment and participation required, a complete failure to involve or even inform the public about an agency’s preparation of an EA and a FONSI violates NEPA. Id. In short, agencies should provide adequate “pre-deeisional opportunities for informed public involvement in the environmental review process.” Sierra Nevada Forest Prot. Campaign v. Weingardt, 376 F.Supp.2d 984, 992 (E.D.Cal.2005). It is unclear to this Court whether the Navy and Defendants claim that the First EA was a “draft.” Regardless, the titling of the document is less important than the procedures and actions that accompanied it. Here, the Navy produced, in January of 2007, its First EA and FON-SI for the USWEX, determining that there would be no significant impacts to resources from the proposed action and, therefore, that preparation of an EIS was not required. On the basis of this decision, the Navy proceeded in April 2007 with two of the proposed twelve USWEXs. In September 2007, approximately seven months after the issuance of the First EA and five months after some of the proposed actions had taken place, the Navy opened the First EA to public comment. Less than one month later, the Navy produced the Revised EA and FONSI. The Revised EA addressed comments from the public but ultimately came to the same conclusion as the First EA. This Court finds the Navy’s post hoc attempts to comply with the public notice and opportunity to comment provisions of NEPA to be inadequate. The case law and NEPA regulations could not be more clear — the public is to be involved before the decision to proceed with a project is made and agencies must diligently strive to involve the public in preparing their NEPA obligations. 40 C.F.R. § 1506.6(a). Here, the public was informed approximately seven months after the preparation of the First EA and the issuance of the First FONSI and well after a significant portion (one-sixth, or two out of a possible twelve) of the proposed exercises had already occurred. In other words, as opposed to allowing the public a pre-decisional opportunity to comment, as NEPA demands, the Navy instead made an initial determination, began the activity, and then belatedly decided that it should include the public in its environmental decision making process. The Navy’s actions adhere neither to the clear language of NEPA’s regulations nor to NEPA’s overall purpose and intent. b. The Adequacy of the Navy’s EAs In their original Injunction Motion, Plaintiffs allege that the Navy’s EAs are substantively flawed and inadequate in numerous respects, specifically: (1) the Navy’s harm threshold is contrary to the best available information and scientific consensus; (2) the Navy failed to address population-level impacts; (3) the Navy ignored the fact that its sonar will cause PTS-level exposure and possible mortality; (4) the Navy’s proposed mitigation offers no meaningful protection and cannot support a FONSI; (5) the Navy failed to adequately examine alternatives; and (6) the Navy’s claim that its previous exercises caused no harm is scientifically unsupportable. Because the Court finds that Plaintiffs have demonstrated a high probability of success on their first and fifth claims relative to the adequacy of the Navy’s EAs, the Court will not discuss the remaining claims. i. The Navy’s Noise Thresholds Plaintiffs argue that the Navy relied on NMFS’ scientifically unsupported noise thresholds in evaluating effects on marine mammals. In essence, Plaintiffs claim, the Navy’s noise thresholds, under which no “harm” occurs unless sonar levels reach at least 195 dB, are not supported by the best available science. The Court notes at the outset of this discussion that it is aware that judicial deference to the expert opinion of agencies is usually appropriate. See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1301 (9th Cir.2003) (“Because analysis of scientific data requires a high level of technical expertise, courts must defer to the informed discretion of the responsible federal agencies.”)- Indeed, this Court is not equipped, nor is it permitted by Ninth Circuit and Supreme Court precedent, to substitute its own judgment for that of an expert agency regarding the appropriateness of the science utilized by the Navy and NMFS here. Marsh v. Ore. Natural Res. Council, Inc., 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own experts, even if a court may find contrary views more persuasive.”). The Court finds, however, in its careful review of Defendants’ Revised EA and Revised FONSI, that the sub-TTS threshold value of 173 dB advocated by NMFS for determining non-behavior altering exposure events is not supported by the best available science under even the most deferential review standard. The “Behavioral Effects” section in the Revised EA begins with the statement that the Navy proposes a behavioral effects threshold of 190 dB based primarily on published studies by Finneran and Schlundt that were conducted on captive marine mammals. (Revised EA at 4-15) After a lengthy discussion of why the 190 dB number is appropriate, the Revised EA changes course, stating that NMFS, based on this “large and growing body of literature” regarding acoustic effects on wild marine mammals, believes that these animals are affected at “significantly lower levels” than those determined in the two captive animal studies relied upon by the Navy. (Id. at 4-16.) There follows a brief recitation of this literature. A group of studies by Malme et al., Ljungblad et al., and Tyack and Clark suggest that cetaceans exposed to human noise sources, such •as seismic airgun sounds and low frequency sonar signals, exhibit avoidance behavior when exposed to sounds in the 140-160 dB range. (Id.) A 2004 study by Nowacek et al. and, tellingly, NMFS, (the “Nowacek study”) on wild North Atlantic right whales indicated that animals exposed to sounds similar to those used in USWEX showed behavioral effects, including the alteration of feeding, diving, and social behavior, at levels on between 133-148 dB. Finally, the Nowacek study also showed that whales reacted strongly (immediate cessation of foraging behavior and rapid surface ascent) to alert signals received on the order of 160 dB. (Id.) The Revised EA then briefly outlines the differences between laboratory noise exposures and frequency modulation and propagation patterns of tactical sonar in operational environments. The document concludes with a brief discussion of the “considerable uncertainty” regarding the validity of applying data collected from trained, captive animals conditioned to not respond to noise exposure in setting thresholds for behavioral reactions of wild mammals. (Id.) Given these considerations, NMFS postulates that a “more conservative acoustic behavioral disturbance threshold for sub-TTS behavioral disturbance than the 190 dB ... criterion is necessary.” (Id.) Acknowledging the limitations of field observations in the wild and the advantages of the captive studies, the Revised EA then states that NMFS prefers a sub-TTS threshold of 173 dB. (Id.) Defendants claim, in their Response to Court’s Questions from Preliminary Injunction Hearing (“Response”) (Doc. # 89), that the 173 dB figure is based upon the Finneran and Schlundt study, the Nowacek study, and the NMFS Haro Strait report. Defendants, however, contradict their own argument, admitting later in the Response that the 173 dB number is based entirely on the Finneran and Schlundt captive animal study, which determined that 173 dB is the level at which 25% of the exposures would cause the most sensitive marine mammals to exhibit some behavioral reaction in response to one of the exposed frequencies. Despite their assertions to the contrary, Defendants did not directly incorporate any information from studies besides Finneran and Schlundt. On the other hand, Plaintiffs have produced extensive and compelling evidence that the 173 dB delineation does not accurately reflect the level at which negative behavioral responses in marine mammals may occur. (See, e.g., Decl. of David Bain (“Bain Deck”), Ex. 18 at 5, attached to Pis.’ Mot. for Prelim. Inj. (claiming that killer whales are known to experience changes in swimming velocity and behavioral states at sound pressures lower than 110 dB)); Deck of Robin Baird (“Baird Deck”), Ex. 19 at 6, attached to Pis.’ Mot. for Prelim. Inj. (claiming that killer whales exposed to MFA sonar displayed unusual diving patterns, ceased feeding, and fled the ensonified area at received levels near 150 dB); Deck of Edward Parsons (“Parsons Deck”), Ex. 22 at 5, attached to Pis.’ Mot. for Prelim. Inj. (citing Nowacek to establish that there is a strong behavioral response in marine mammals to energy levels of 153 dB). Defendants, however, base the 173 dB threshold on a single study of captive, trained animals — a study that has been vigorously attacked not only by a litany of experts in the field, but by NMFS itself. In the Revised EA, the Navy acknowledges that, “NMFS believes that the large and growing body of literature regarding the reactions of wild, naive marine mammals to anthropogenic exposure generally suggests that wild animals are behaviorally affected at significantly lower levels than those determined for captive animals by Finneran and Schlundt (2004).” (Revised EA at 4-16.) The Court is unclear how the Navy can claim it relied upon the best available science when its own EA indicates that NMFS believes that it did no such thing. While this Court acknowledges the nascent nature of this issue and the science surrounding it, it is unconvinced that NMFS and the Navy’s approach toward setting the behavioral harm threshold is justified. Defendants have simply not articulated a rational connection between what the vast majority of published, peer reviewed science indicates and the 173 dB threshold. This casts into serious doubt the Navy’s assertion that, despite over 60,-000 potential exposures to MFA sonar, marine mammals will not be jeopardized. In light of this discussion, the Court finds Defendants’ reliance on the sub-TTS threshold of 173 dB to be arbitrary and capricious. Accordingly, Plaintiffs are likely to succeed on this claim. ii. Alternatives Analysis NEPA requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal.” 42 U.S.C. § 4332(2)(E); see also 40 C.F.R. § 1508.9(b) (EAs “[sjhall include brief discussions ... of alternatives”). The Ninth Circuit has held that: consideration of alternatives is critical to the goals of NEPA even where a proposed action does not trigger the EIS process. This is reflected in the structure of the statute: while an EIS must also include alternatives to the proposed action, 42 U.S.C. § 4332(2)(C)(iii) (1982), the consideration of alternatives requirement is contained in a separate subsection of the statute and therefore constitutes an independent requirement. See id. § 4332(2)(E). The language and effect of the two subsections also indicate that the consideration of alternatives requirement is of wider scope than the EIS requirement. Bob Marshall Alliance v. Model, 852 F.2d 1223, 1228-29 (9th Cir.1988). Informed and meaningful consideration of all alternatives — including the no-action alternative — is an integral part of the NEPA statutory scheme. Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir.1995) (internal citation omitted). Where the agency considers only a no-action alternative along with two “virtually identical alternatives,” NEPA is violated. Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 813 (9th Cir.1999). This Court recognizes that Hawai’ I’s waters provide a unique training opportunity for deploying strike groups. However, this does not give the Navy unmitigated leeway to tailor its environmental analysis so narrowly as to preclude anything but its desired result. Here, the Navy considered, in both its First and Revised EAs, the following alternatives: (1) Alternative 1 — six USWEXs per year; (2) Alternative 2 — four USWEXs per year; and (3) the No-Action Alternative. (Revised EA at 2-11-2-12.) Alternative 1 is designed to meet the “maximum expected U.S. Navy and Department of Defense current and near-term operational training requirements based on known and expected force structure.” (Id. at 2-11) Alternative 2 is designed to meet the “typical” expected training requirements. (Id. at 2-12) Under the No-Action Alternative, individual training exercises comprising a USWEX would continue to occur but they would not be consolidated into a coordinated training event. (Id.) Instead, these exercises would be environmentally analyzed individually, with the events occurring on an as-needed basis. (Id.) Consolidating training events into a USWEX, as the proposed action does, “would result in more realistic combat conditions with the ability to assess submarine warfare training postures in the Hawaiian Islands Operating Area pri- or to deployment.” (Id.) In essence, the Navy’s alternatives analysis consists of a preferred option, which allows them to undertake the maximum level of USWEXs to meet their operational objectives, a second option, which mirrors the first option except that it decreases the amount of USWEXs by four (or one-third of the proposed total in Alternative 1), and a third option, which allows them to conduct the same exercises, just not consolidated into a single USWEX, and which is summarily dismissed as fundamentally inconsistent with naval training objectives. Moreover, the No Action Alternative is a true “no action” alternative in name only; in reality, this option would allow the Navy, though not in the manner required by its training needs, to engage in exercises using MFA sonar at much the same level and frequency as the preferred alternatives. This alternatives analysis essentially relegates environmental considerations to secondary status and, thus, runs contrary to the goal of NEPA. “The goal of the statute is to ensure that federal agencies infuse in project planning a thorough consideration of environmental values. The consideration of alternatives requirement furthers that goal by guaranteeing that agency decision makers have before them and take into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance.... ” Bob Marshall Alliance, 852 F.2d at 1228 (internal citations omitted) (emphasis in original). The kind of thorough consideration of environmental values called for by NEPA is not possible when the end result — engaging in military exercises using devices that are potentially harmful to the environment — is predetermined. The Court also fails to see how a “no action” alternative that involves the continuation of individual training exercises using MFA sonar subject to the Navy’s discretionary environmental review falls within NEPA’s explicit alternatives analysis requirement. The Navy’s alternatives analysis fails to meet NEPA’s standards and, as a result, Plaintiffs have a high likelihood of success on this claim. c. The Navy’s Obligation to Prepare an EIS The Plaintiffs, in demonstrating that the EAs were deficient, show a probability of success on their claim that the Navy is obligated to prepare an EIS for USWEX. As previously discussed, the Ninth Circuit has interpreted the NEPA provision mandating the preparation of an EIS for all major federal actions significantly affecting the quality of the human environment, 42 U.S.C. § 4332(2)(C), to require agencies to prepare an EIS “where there are substantial questions about whether a project may cause significant degradation of the human environment.” Native Ecosystems, 428 F.3d at 1239 (emphasis in original). To trigger the requirement for an EIS, a plaintiff need not show that significant effects will in fact occur, raising “substantial questions whether a project may have a significant effect is sufficient.” Idaho Sporting Cong., 137 F.3d at 1150. Notwithstanding the procedural and technical defects with the Navy’s environmental assessment here, Plaintiffs have raised substantial questions as to whether USWEX would have a significant impact on the environment. Mass strandings of several species of whales following naval exercises have been documented in the Bahamas, the Canary Islands, Hawaii, North Carolina, Japan, Greece, Spain, Taiwan, the Madeira archipelago, and the U.S. Virgin Islands. (See generally, Exs. 7-17, attached to Pis.’ Mot. for Prelim. Inj.) The International Whaling Commission’s Scientific Committee concluded that “[t]he weight of accumulated evidence now associates mid-frequency, military sonar with atypical beaked whale mass strandings.” (8/21/07 Report of the Standing Working Group on Environmental Concerns, Ex. 9 at 9, attached to Pis.’ Mot. for Prelim. Inj.) This evidence is convincing. A Navy-sponsored study similarly concluded, “the evidence of sonar causation is, in our opinion, completely convincing and that therefore there is a serious issue of how best to avoid/minimize future beaching events.” (Active Sonar Waveform, Ex. 10 at 1, attached to Pis.’ Mot. for Prelim. Inj.) In addition to stranding events, MFA sonar has been linked to embolisms found in dead whales’ organs, with experts believing that loud sonar causes deep-diving whales to ascend rapidly and suffer corresponding decompression sickness. (5/25/07 Report of the Standing Working Group on Environmental Concerns, Ex. 12 at 33, 39, attached to Pis.’ Mot. for Prelim. Inj.) NMFS’ own BiOps (both the First and Revised) rely on studies that conclude that sonar may disrupt behavior, causing whales to change diving patterns and migration routes and to cease foraging, feeding and communicating. (Revised BiOp at 4-15-4-16) Based on the Navy’s less than adequate analysis of alternatives and reliance on an arbitrary sub-TTS harm threshold, in addition to the volume and persuasiveness of information presented by Plaintiffs showing a likelihood of physical and behavioral effects on marine mammals, this Court finds that the Navy must prepare an EIS for USWEX. The Court notes that the Navy is in fact currently preparing the Hawaii Range Complex EIS (“HRC EIS”), which will include the remaining USWEXs scheduled through January 2009. (Defs.’ Supp. Opp. to Pls.’ Mot. for Prelim. Inj. at 3; see also Revised EA at 4-12.) The HRC EIS is expected to be released in June 2008. (Defs.’ Supp. Opp. to Pis.’ Mot. for Prelim. Inj. at 12.) It appears that the Navy and NMFS will be revising the modeling methodology for assessing the probability of marine mammals being behaviorally harassed by potential exposure to MFA sonar for purposes of the HRC EIS. Plaintiffs make several additional arguments in support of their claim that an EIS is required in their Supplemental Brief Regarding Defendants’ NEPA Violations, namely that: (1) USWEX will occur in ecologically critical areas; (2) the effects of USWEX are highly controversial; (3) USWEX’s possible impacts are highly uncertain and involve unique risks; (4) the proposed action violates several other laws, and also threatens endangered species, triggering the need for an EIS, and (5) USWEX have potentially significant cumulative effects that the EAs ignore. The Court, for the reasons set forth in brief below, finds the first, second, and third of these arguments compelling. They buttress the Court’s previous finding that an EIS should be completed for USWEX. As previously discussed, NEPA requires the preparation of an EIS wherever the impact to the environment may be “significant.” Nat'l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir.2001). NEPA’s regulations provide guidance on whether effects of an action may be significant. For example, where the unique characteristics of the geographic area in which the proposed activity is to occur involves proximity to ecologically critical areas, the impact of the action may be considered significant. 40 C.F.R. § 1508.27(b)(3). Here, Plaintiffs argue that USWEX will occur in proximity to the Hawaiian Islands Humpback Whale National Marine Sanctuary (“HIHWNMS”) during a portion of the year when thousands of endangered humpback whales inhabit the shallow waters around Hawaii and in proximity near seamounts where deep-diving beaked whales are known to congregate. As both of these locations are ecologically sensitive areas, the argument goes, USWEX’s impacts are significant for NEPA purposes. Defendants counter that the Navy is permitted to conduct exercises in the HIHWNMS and its exercises have not resulted in documented harm to marine mammals over the past 40 years. The Court agrees with Plaintiffs. Regardless of whether the Navy is permitted to perform its exercises in the HIHWNMS, which will be discussed more in the NMSA section below, it is at least arguable that a federally-recognized sanctuary constitutes an ecologically critical area for purposes of NEPA. Accordingly, Plaintiffs’ contention that an EIS is warranted based on USWEX’s proximity to the HIHWNMS has merit. Plaintiffs’ next argument — that an EIS is required because the effects of USWEX are extremely controversial — is similarly compelling. An action may be deemed significant under NEPA when the degree to which the effects on the quality of the environment are likely to be highly controversial. 40 C.F.R. § 1508.27(b)(4). Plaintiffs argue that, when declarations of conservationists, biologists, and other experts are highly critical of an EA and dispute the agency’s conclusion that there would be no significant effects from the proposal, this is “precisely the type of ‘controversial’ action for which an EIS must be prepared.” Sierra Club v. U.S. Forest Serv., 843 F.2d 1190, 1193 (9th Cir. 1988). Defendants claim that the preparation of an EIS is mandated only where uncertainty may be resolved by further collection of data, or where the collection of data may prevent speculation on potential effects. See Native Ecosystems, 428 F.3d at 1240 (citation omitted). Agencies must prepare environmental impact statements whenever a federal action is “controversial,” that is, when “substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor,” Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1539 (9th Cir.1997) (quoting LaFlamme v. FERC, 852 F.2d 389, 397 (9th Cir.1988)) (Reinhardt, J., concurring in part and dissenting in part), or there is “a substantial dispute [about] the size, nature, or effect of the major Federal action.” Blue Mountains, 161 F.3d at 1212 (citing Greenpeace Action, 14 F.3d at 1335; Sierra Club, 843 F.2d at 1190). A substantial dispute exists when evidence, raised prior to the preparation of an EIS or FONSI casts serious doubt upon the reasonableness of an agency’s conclusions. Nat’l Parks & Conservation Ass’n, 241 F.3d at 736 (internal citations omitted). NEPA then places the burden on the agency to come forward with a well-reasoned explanation demonstrating why those responses disputing the EA’s conclusions do not suffice to create a public controversy based on potential environmental consequences. Id. The term “well reasoned explanation” is simply a less direct way of saying that the explanation must be “convincing.” Id. The Court finds that a substantial controversy exists with regard to the Navy’s environmental impacts analysis for USWEX. While the Court does not recount Plaintiffs’ numerous experts or their findings in detail here, it is accurate to say that the evidence disputing the Navy’s environmental conclusions is substantial. NMFS itself admitted, in its official report on the 2004 Hanalei whale incident, that: “[f]or the past decade, the potential role of acoustic exposure, particularly to tactical mid-frequency, military active sonar, in marine mammal stranding events has been a subject of relatively intense consideration and debate.” (Hanalei Report, Ex. 8 at 33, attached to Pis.’ Mot. for Prelim. Inj.) Moreover, Defendants have not come forward with a sufficiently convincing explanation why the evidence before this Court, which is subject to substantial media attention, does not create a public controversy. Instead, Defendants assert that Plaintiffs simply disagree with the Navy’s analysis, which it alleges is consistent with consensus views of the scientific community. This is not only inaccurate, in light of the substantial amount of conflicting information before the Court, but, even if true, would not rise to the level of “convincing” for purposes of satisfying Defendants’ burden here. There is substantial national controversy regarding the Navy’s use of MFA sonar and this fact further supports the need for an EIS. Finally, Plaintiffs claim that an EIS is required because USWEX might have uncertain impacts or involve unique risks. An action may be deemed significant under NEPA where possible effects on the environment are uncertain or involve unique or unknown risks. 40 C.F.R. § 150827(b)(5). If ever a factual scenario satisfied this criteria, it is this one. The uncertainty of the effects of MFA sonar on marine mammals-at what levels, at what distances, under what conditions, and on which species-is at the heart of this lawsuit and the voluminous briefings, declarations, and rival studies only underscore this point. Defendants admit, with respect to the 2000 Bahamas stranding, that "the specific mechanisms that led to the Bahamas stranding are not understood and there is uncertainty regarding the ordering of effects that led to the stranding." (Revised BA at 4-18.) This statement encapsulates the issue and underscores the necessity for an EIS. For the reasons discussed above, Plaintiffs have demonstrated a probability of success on their NEPA claims. 2. CZMA Plaintiffs’ third cause of action alleges that Defendants violated the CZMA by ignoring the law’s mandatory procedural requirements. The CZMA requires that “[e]ach federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved state management programs.” 16 U.S.C. § 1456(c)(1). Under the CZMA, agencies must comply with “the enforceable policies of management programs unless full consistency is prohibited by existing law applicable to the Federal agency.” 15 C.F.R. § 930.32(a)(1). Agencies must submit a consistency determination “for all Federal agency activities affecting any coastal use or resource” to the applicable state agency. 15 C.F.R. § 930.34. Effects on coastal resources is construed broadly: “[t]he term ... means any reasonably foreseeable effect on any coastal use or resource resulting from a Federal agency activity!.]” 15 C.F.R. § 930.11 (emphasis added). If the agency determines that there will be no effects, the agency shall submit a negative determination describing the activity and explaining why it will have no reasonably foreseeable effects on coastal uses or resources. 15 C.F.R. § 930.35. Although the CZMA lacks a citizen suit provision, judicial review of agency compliance is available pursuant to the APA. See, e.g., Friends of Earth v. U.S. Navy, 841 F.2d 927, 936 (9th Cir.1988); 5 U.S.C. §§ 701-06. Thus, the Navy’s action with regard to the CZMA may be set aside only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A); Anaheim Memorial Hosp. v. Shalala, 130 F.3d 845, 849 (9th Cir.1997). Before determining whether the Navy violated the CZ]Y[A, the Court first briefly reviews the actions the Navy took pursuant to its obligations under the CZMA. As stated previously, following the issuance of the First EA and FONSI, the Navy conducted two LTSWEXs in April 2007. Plaintiffs filed the instant suit in May 2007. On August 14, 2007, the Navy then submitted a programmatic Negative Determination (“First ND”) for all of its proposed USWEXs finding that the exercises would not have reasonably foreseeable direct or indirect effects on any coastal use or resource of the State’s coastal zone. (First ND, Ex. 3 at 2, attached to Defs.’ Mot. in Opp’n to Pis.’ Inj. Mot.) On October 5, 2007, the State objected to this determination, finding that USWEX would have reasonably foreseeable affects on coastal resources and uses and, as a result, a consistency determination was required. (10/5/07 Letter from Acting Director Mary Lou Kobayashi, Ex. 16, attached to Defs.’ Supp. Opp’n to Pis.’ Inj. Mot.) Representatives of the State and the Navy met on numerous occasions to discuss the issues set forth in the State’s objection to the Navy’s First ND. On October 25, 2007, the Navy submitted another Negative Determination (“Second ND”) limited to the November 2007 USWEX based on the fact that the MFA sonar portion of these exercises would occur approximately 20 nautical miles (“nm”) or greater from shore. On October 29, 2007, the State agreed to the Navy’s Second ND pursuant to ten conditions, one of which was that a single comprehensive consistency determination would be submitted for all remaining USWEXs. (10/29/07 Letter from Acting Director Mary Lou Kobayashi, Ex. 18, attached to Defs.’ Supp. Opp’n to Pis.’ Inj. Mot.) On February 4, 2008, the Navy submitted a Negative Determination (“Third ND”) for its March 2008 USWEX, asserting that all planned exercises would occur approximately 40 nm or greater from shore. (Third ND, Ex. 34, attached to Defs.’ Second Supp. Opp’n.) Thus, the Navy requested the State’s concurrence with its determination that no reasonably foreseeable effects on coastal uses or resources would occur as a result of the March 2008 USWEX. (Id.) The Navy failed to adhere to the CZMA in two respects. First, it submitted its First ND well after the CZMA proscribed deadline. CZMA regulations mandate that a negative determination, where appropriate, must be provided to the state agency “at least 90 days before final approval of the activity” under the CZMA. 15 C.F.R. § 930.35. As already documented, the Navy completed its First EA and issued its First FONSI in January/February 2007 and conducted the first two USWEXs in April 2007. The Navy submitted its First ND to the State on August 14, 2007. Wheth