Full opinion text
ORDER ON MOTIONS FOR SUMMARY JUDGMENT JOHN A. WOODCOCK, JR., District Judge, sitting by designation. I. INTRODUCTION.........................................................101 II. STATEMENT OF FACTS..................................................102 III. PROCEDURAL HISTORY.................................................104 A. Background...........................................................104 B. Motions for Summary Judgment.........................................105 IV. STANDARD OF REVIEW.................................................105 V. DISCUSSION.............................................................107 A. Clean Water Act Claims................................................107 1. Practicable Alternatives.............................................108 2. Public Interest Review .............................................112 a. Traffic Impacts................................................113 i. Impact of Dunbarton and Silk Roads..........................113 ii. General Impacts of Phase II.................................114 b. Balancing Recreational and Educational Resource Impacts..........116 i. Recreational Impacts.......................................116 ii. Educational Impacts........................................117 3. Deference to State and Local Zoning and Land Use Decisions...........118 4. Wetland Mitigation.................................................120 5. Effluent Limitations — 33 U.S.C. § 1341(d) Compliance..................123 B. Scope of the Environmental Assessment & Cumulative Impacts .............124 1. Segmentation: Connected and Cumulative Actions.....................125 2. Cumulative Impacts................................................126 3. Secondary Impacts.................................................128 C. Historic Preservation ..................................................128 1. The Tuttle House..................................................129 2. Pleasant View Home ...............................................130 3. Consideration of Alternatives........................................131 4. Documentation and Public Participation Requirements..................132 D. NEPA...............................................................133 1. FONSI Review....................................................133 2. Whether the Effects are “Highly Controversial” .......................135 VI. CONCLUSION............................................................136 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 three and one half acres of wetlands to build a 4,300-foot connector road. In a comprehensive nineteen-count complaint spanning 140 pages, the Plaintiffs allege that the Corps committed numerous statutory violations. See generally Compl. (Docket # 1). This case has been exhaustively litigated and now comes on dueling motions for summary disposition. The Court grants the motions for summary judgment filed by the Federal Defendants, the city of Concord, and the Inter-venors; the Court denies the motion for summary judgment filed by the Plaintiffs. II. STATEMENT OF FACTS Within the capítol city of Concord, New Hampshire, there is a roughly V-shaped parcel of open land that runs from the center of the city to the playing fields of St. Paul’s School. The V lies on its side, pointing east. The northern leg of the V is Pleasant Street, the southern leg is Clinton Street, and it is capped on the west by the Silk Farm Road and Dunbarton Road, which wend through St. Paul’s campus. Concord has grown around the V. Concord Hospital, a major regional medical center, is located on Langley Drive, which intersects with Pleasant Street; downtown Concord and Concord High School lie to the east of the point of the V; and, 1-89 intersects with Clinton Street, the southerly leg of the V. Surprisingly, the land inside the V has remained pristine. The V contains the state-owned White Farm complex, a farm that has been listed on the National Register of Historic Places since May 15, 1981, for its significance as representing the practice and evolution of progressive agriculture. The V includes the Pleasant View Home, also listed on the National Historic Register and known for its beautiful vistas; the Tuttle House, a property eligible for listing on the National Historic Register; and a monastery for the Carmelite Sisters, a cloistered religious order that prizes peace and quiet. This open, undeveloped area not only has an extensive system of cross-country skiing and hiking trails often enjoyed by Concord residents, but also it has significant wetlands. In the late 1940s, Concord city planners developed a vision for a Northwest Bypass, a circumferential roadway around the City. As Concord grew, only one portion of the Northwest Bypass was constructed and the remaining plans to ring the city remained visionary. In 1956, Concord Hospital, now one of the busiest hospitals in New Hampshire, moved to Pleasant Street and as patient volume grew, so did traffic volume. After 1-93 and 1-89 were built and as the surrounding area developed, the streets that formed the V became increasingly congested funnels into and out of Concord. The worst of the problem centered around the notorious five prong intersection of Pleasant, Warren, and Fruit Streets, a problem exacerbated by its location between Concord High School and its athletic fields and the constant ebb and flow of students. City planners began to conceive of ways to loosen the snarl; they harkened back to the old concept of a Northwest Bypass and began to focus on placing a road transecting the V. The entire project was divided into three phases: Phase I would reconstruct a portion of Pleasant Street with turning lanes and a traffic signal and build a new access road to Concord Hospital, called Langley Parkway South; Phase II would intersect the V connecting Pleasant and Clinton Streets through the V; and, Phase III would extend Langley Parkway South about one mile north to Penacook Street in the north central part of Concord. In the early 1990s, the city filed for governmental approvals of the entire Northwest Bypass project and on April 30, 1993, it received the necessary approvals from the New Hampshire Department of Environmental Services (NHDES) for the whole project. The Corps also issued a permit, but restricted its approval to Phase I. The changes on Pleasant Street and the relatively short roadway to the Hospital — only 1,500 feet long — were not controversial. As originally designed, Langley Parkway South was limited to a single curb-cut, and did not impinge on the unspoiled land in the center of the V. Once Phase I was completed in 1995, the city turned back to Phase II, the road transecting the V. From a planning perspective, Phase II made good sense. The residential streets were never designed to carry such heavy traffic loads, patients and emergency vehicles were caught in interminable, unsafe delays, and traffic had shifted over to Silk Farm Road, which leads to Dunbarton Road, and through the campus of St. Paul’s School, a private secondary residential school of about 525 students. Silk Farm Road and Dunbarton Road even now remain bucolic, winding country roads, but they endure approximately 1, 600 motor vehicles daily, some racing through the campus and placing the students and others at risk. St. Paul’s, anxious to restrict access, and Concord Hospital, anxious to facilitate access, joined forces with the City and the three agreed to share the costs of the project. In addition, the City agreed to declare Silk Farm Road and Dunbarton Road private, thereby limiting access to those who have business at St. Paul’s. In November 2000, the City announced its intention to proceed with Phase II by filing an application with the NHDES for a wetland fill permit and water quality certificate. 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. The City’s decision provoked a firestorm of controversy. A nonprofit unincorporated association of residents, called the Northwest Bypass Group (NBG), coalesced opposition to Phase II, which the Complaint aptly describes as “fierce.” Compl. ¶ 5. NBG is dedicated to protecting and preserving “the scenic, historical, ecological and aesthetic values that would be impacted by this project’s construction, and [raising] public awareness about the impact it would have on nearby neighborhoods.” Id. The opponents of Phase II have determinedly fought the project at each stage beginning with the multiple state approvals and continuing with the final approval process of the Corps. Between 2000 and 2006, the project was held in abeyance due to state court proceedings. The opponents were unsuccessful, the culmination being a New Hampshire Supreme Court decision affirming summary judgment in favor of the City. See Blake-ney v. City of Concord, No.2004-0438, slip, op. (N.H. August 19, 2005) (Corrected Order). 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.” AR 1:34. Next, the Corps considered and rejected three alternatives. Id. 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 waged a full scale assault in this Court against the Corps’s approval. III. PROCEDURAL HISTORY A. Background Consisting of 140 pages and nineteen separate counts, the Complaint, dated July 13, 2006, is an articulate treatise on environmental and administrative law complete with case law, statutory, and regulatory support. In addition to NBG, the plaintiffs include Morton C. and Carolyn H. Tuttle, owners and residents of the historic Tuttle House, and Leslie J. Ludtke, a New Hampshire resident and avid user of the Turkey River White Farm Trails system that the connector road would intersect. The Defendants include the Corps and the city of Concord and, as intervenors, Concord Hospital and St. Paul’s School. On the same day as they filed their Complaint, Plaintiffs moved for a temporary restraining order (TRO) and a preliminary injunction. See Pis.’ Mot. for TRO and Prelim. Inf (Docket # 2). Plaintiffs subsequently filed an emergency motion for a TRO and requested an expedited hearing on September 6, 2006. Pis. ’ Emergency Mot. for TRO & Req. for Expedited Hr’g (Docket # 32). The Court held a hearing on both the TRO and preliminary injunction on September 13, 2006, and denied the TRO by order dated September 15, 2006. See Order on Emergency Mot for TRO (Docket # 46). Plaintiffs moved for reconsideration of that order. Pis.’ Mot. to Reconsider Order on Pis. ’ Mot. for TRO (Docket # 50). On January 5, 2007, the Court denied Plaintiffs’ motion for a preliminary injunction. See Order (Docket # 81) (Prelim. Inj. Order). Within that Order, the Court also denied Plaintiffs’ motion for reconsideration of the Order on the TRO. Id. at 2 n. 5. On January 29, 2007, the Plaintiffs moved for reconsideration of the order denying a preliminary injunction. See Mot. for Recons, of Order on Pis. ’ Mot. for Prelim. Inj. (Docket # 87). Plaintiffs replaced that motion with an amended motion the following day, which the Court denied on June 4, 2007. Pis. ’ Am. Mot. to Reconsider Order on Pis. ’ Mot. for Preli-min. Inj. (Docket #91); Order on Pis.’ Am. Mot. to Reconsider Order for Partial Recons, of Order on Pis. ’ Mot. for Preli-min. Inj. (Docket # 124). B. Motions for Summary Judgment Before the Court are several motions and cross-motions for summary judgment. On June 26, 2007, the City of Concord filed a motion for summary judgment. Def. City of Concord’s Mot. for Summ. J. (Docket # 136) (City’s Mot.). The Plaintiffs responded with their opposition on August 13, 2007, Pis.’ Mem. in Opp’n to City of Concord’s Mot. for Summ. J. (Docket # 144), and amended their memorandum on August 15, 2007. Pis.’ Am. Mem. in Opp’n to City of Concord’s Mot. for Summ. J. (Docket # 146) (Pis. ’ Am. Opp’n to City). On July 3, 2007, the intervenors, Concord Hospital and St. Paul’s School, filed their motion for summary judgment. Intervenor’s Mot. for Summ. J. (Docket # 138) (Intervenor’s Mot.). On August 13, Plaintiffs filed their objection to that motion. Pis.’ Obj. to Intervenor’s Mot. for Summ. J. (Docket # 145) (Pis. ’ Obj. to Intervenors). Also on August 13, 2007, the Corps filed its motion for summary judgment. Federal Defs.’ Mot. for Summ. J. (Docket # 142) (Corps’ Mot.). The Plaintiffs filed their response on September 18, 2007. Pis. ’ Resp. to the Federal Defs. ’ Mem. in Supp. of Mot. for Summ. J. (Docket # 152) (Pis. ’ Resp. to Corps). The Federal Defendants filed a reply on October 9, 2007. Federal Defs.’ Reply Mem. in Supp. of Mot. for Summ. J. (Docket # 154) (Corps’ Reply). Plaintiffs filed a motion for summary judgment on August 13, 2007. Pis.’ Mot. for Summ. J. (Docket # 143) (Pis.’ Mot.). The City of Concord objected on September 17, 2007. City of Concord’s Obj. to Pis. ’ Mot. for Summ. J. (Docket # 148) (City’s Obj.). The intervenors objected to the Plaintiffs motion on September 18, 2007, and the federal defendants objected on the same day. Intervenor’s Obj. to Pis. ’■ Mot. for Summ. J. (Docket # 149) (Inter-venor’s Obj.); Federal Defs.’ Mem. in Opp’n to Pis.’ Mot. for Summ. J. (Docket # 151) (Corps’ Opp’n). Plaintiffs replied on October 9, 2007, to both the City’s opposition and the Federal Defendant’s opposition. Pis.’ Reply to City of Concord’s Mem. in Opp’n to Pis.’ Mot. for Summ. J. (Docket # 155) (Pis. ’ Reply to City); Pis.’ Reply to the Federal Defs.’ Mem. in Opp’n to Pis.’ Mot. for Summ. J. (Docket # 156) (Pis. ’ Reply to Corps). IV. STANDARD OF REVIEW Because this is a review-pof an action by a federal agency, the standard of review is supplied by the Administrative Procedure 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 has explained that the task of a court reviewing an 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 Assoc. 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”); 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. Assoc. 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 Alan Wright & Charles H. Koch, Jr., Federal Practice & Procedure § 8334 (current through 2008 update) (“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 (1st Cir.1989). “[The] rubric [of summary judgment review] has a special twist in the administrative law context.” Assoc. Fisheries of Me., Inc., 127 F.3d at 109. “[W]here the APA standard obtains, a court may set aside an administrative action only if that action is arbitrary, capricious, or otherwise contrary to law.” Id. “Thus, a reviewing court’s role in a case governed by the APA is ‘not to resolve contested fact questions which may exist in the underlying administrative record,’ but rather to ‘determine the legal question of whether the agency’s action was arbitrary and capricious.’ ” Conservation Law Foundation v. Fed. Highway Admin., No. 06-45, 2007 U.S. Dist. LEXIS 64465, *40, 2007 WL 2492737, *11 (D.N.H. Aug. 30, 2007) (quoting Gilbert Equip. Co., Inc. v. Higgins, 709 F.Supp. 1071, 1077 (S.D.Ala.1989), aff'd 894 F.2d 412 (11th Cir.1990)). V. DISCUSSION A. Clean Water Act Claims 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 (internal citation and 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). Plaintiffs claim that the Corps failed to comply with these guidelines on several levels, including its findings on practicable alternatives, its balancing of the public interest, and its deference to state and local zoning and land use decisions. 1. Practicable Alternatives Plaintiffs claim that the “Corps failed to rebut ‘the very strong’ presumption of the existence of practicable alternatives” and that “there is a ‘very strong’ presumption that practicable alternatives exist when a proposed project is not water dependent, and that the agency carries the burden to rebut that presumption by showing the alternatives to be impracticable.” Pis.’ Mot. at 12 (quoting Compl. and Order on Pis. ’ Mot. for Partial Recons, on Pis. ’ Mot. for Prelim. Inj. at 8) (emphasis in Pis.’ Mot). Corps guidelines provide that the agency 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). EPA regulations presume that alternatives exist when the proposed project is not “water dependent,” defined as not requiring “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. v. Flowers, 321 F.3d 1250, 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 .... ” (internal citations and quotation marks omitted)) [hereinafter Whistler]. Here, it must be presumed that alternatives existed 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,” and “upgrade alternatives” options, but rejected them. Corps’ Opp’n at 5. 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 the proposed alternative, a road alignment that would have re-routed the proposed roadway, and an “[ujpgrade alternative,” wherein the City would widen existing roads and add more lanes. Id. The Corps characterized the proposed alternative, permitted by the EA at issue in this case, as “crossing at a narrow point and nipping the edge of the existing wetlands.” AR 1:34. Another 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 option — a “no build alternative” that would require upgrading existing city streets — was found impractical because of the large number of properties affected and because it did not resolve pedestrian safety issues. Id. Regarding the “no build” alternative, 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 “[u]pgrades 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.” Id. at 1:34-35. The Corps concluded that the proposed roadway was the “least environmentally damaging practicable alternative.” Id. at 1:35. The Plaintiffs present three arguments regarding practicable alternatives. First, they claim that while the Corps concluded that widening South Fruit and Pleasant streets was not a practical alternative, the evidence: [D]iscusses alternatives to the entire Northwest Bypass and contains no information either identifying or comparing the costs and benefits of just Phase II, with its alternatives; nor does the record contain any analysis by which information specific to Phase II is broken out of the 1991 study [upon which the Corps relied]. Pis.’ Mot. at 14 (referencing AR 5:167). In response, the Corps cites a Rizzo Asso-dates document that states, regarding Phase II alone: The necessary intersection improvement would require property acquisition from 17 properties.... The upgrade impacts an additional 9 properties. More importantly, this alternative serves to pass more traffic through residential, recreation, and school areas, while the parkway diverts this traffic to a limited access roadway and in doing so improves operations and safety at the busy Pleasant Street intersection. AR 6:18-19. This document applies to Phase II alone, without reference to the 1991 study and Phases I and III of the project. The record supports the Corps’ determination that the road expansion alternative was not practicable in that it required significant property acquisition and would increase the amount of traffic moving through residential, recreation, and school areas. Second, the Plaintiffs attack the Corps’ rejection of the “no build” option. Pis.’ Mot at 15. They say that the Corps defended its approval in part on the assumption that “the project purpose of improved pedestrian safety is purportedly independent of congestion reduction.” Id. at 14. The Plaintiffs argue the notion that pedestrian safety can be only addressed independently of traffic congestion is “unsupported.” Id. at 15. Next, the Plaintiffs claim that even if “pedestrian safety can only be addressed independently of traffic congestion,” the Corps failed “to study discrete pedestrian safety alternatives that were specifically brought to its attention in public comments.” Id. Specifically, they say that the construction of a pedestrian overpass combined with repaving and upgrading the sidewalks was a viable alternative to the pedestrian concerns. Id. Neither argument is convincing. The Corps has not adopted the Plaintiffs’ description of its own view of the pedestrian safety issue, which the Court views as somewhat opaque. Moreover, even if pedestrian safety could be alternatively addressed, the Corps concluded that none of the alternatives would adequately ameliorate the traffic congestion problem. Finally, the Corps’ underlining and notation on Ms. Ludtke’s motion for reconsideration to NHDES does not suggest that the Corps ignored the Plaintiffs’ contentions; rather, it confirms that it did consider them. The Corps merely reached a different conclusion. The Corps was not arbitrary and capricious in finding that the upgrade alternatives were not practicable regardless of whether a pedestrian bridge is included, so this argument is not determinative. 40 C.F.R. § 230.10(a)(2) (“An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.”) (emphasis added). Third, Plaintiffs describe an alternative not considered in the EA. They cite a 1996 study by a consulting firm, VHB/Vanasse Hangen Brustlin, Inc. (VBH), “which would include realignment of the notorious 5-pronged Pleasant Street/Fruit StreetAVarren Street intersection, and would require neither widening South Fruit Street, nor any costs and impacts to developed properties fronting on it.” Pis. ’ Mot. at 14 (referencing AR 6:1134). Plaintiffs assert that this realignment will be required with or without Phase II construction, and that it will resolve the same issues that Phase II is purported to resolve. Pis.’ Resp. to Corps at 5. The Corps contends that the VHB report suggests this alternative in response to “a different set of traffic concerns in downtown Concord than the City was trying to address with Phase II.... While the 1996 VHB report addressed traffic issues in the Pleasant Street corridor, the report’s analysis assumed that Phase II would be built.” Fed. Def.’s Opp’n at 6 (citing AR 6:1152). The Corps asserts that the realignment outlined in the VHB report would not result in a decrease in “left-hand turns from South Fruit Street to Pleasant Street” and would not achieve the benefit of “the overall reduction of traffic on the Clinton-South Fruit-Pleasant Streets Route.” Id. Plaintiffs reply that, according to the purpose of the project, because pedestrian safety is “inherent” in reduced traffic congestion, “pedestrian safety is among the purposes accomplished by relieving traffic congestion,” so the realignment is a practicable alternative that should have been considered. Pis. ’ Mot, at 15 (emphasis in original); Pis.’ Resp. to Corps at 4. The VHB report itself states: The purpose of this study is to develop a conceptual improvement plan for a 1.4 mile section of the Pleasant Street Corridor extending from Concord Hospital to South Spring Street, to evaluate and recommend a preferred improvement plan for the critical Pleasant StreetAVarren Street/South Fruit Street intersection, and lastly to develop a traffic management plan aimed at protecting the nearby residential neighborhoods from intrusion of continued traffic growth. AR 6:1140. The report mentions the Northwest Bypass in its section concerning “physical roadway conditions,” and appears to describe the Bypass, including Phases II and III, as conditions assumed into the report. AR 6:1143. A map of the studied area includes the Future “Northwest By-Pass” in its depiction of traffic volumes. AR 6:1147-48. The report also assumes that the road will be built in its section on “future conditions.” AR 6:1152 (stating that “[cjurrent plans call for the construction of the southern leg of the Bypass — from Pleasant Street to Clinton Street — by 1999”). Further, the EA states that the utility of Phase II is that it “could ease congestion on South Fruit Street and improve pedestrian and traffic safety by providing an alternate means to get from Route 1-89 via Clinton Street to Concord Hospital.” AR 1:32. The realignment does not meet this basic description of the purpose of the project. The Corps’ determination that the VHB report did not create an alternative (practicable or not) to the Bypass was not arbitrary and capricious. 2. Public Interest Review 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 regulations list the factors that the agency must consider: (i) The relative extent of the public and private need for the proposed structure or work; (ii) Where there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure or work; and (iii) The extent and permanence of the beneficial and/or detrimental effects which the proposed structure or work is likely to have on the public and private uses to which the area is suited. 33 C.F.R. § 320.4(a)(2). The regulations grant the agency flexibility in determining how to weigh those factors: The specific weight of each factor is determined by its importance and relevance to the particular proposal. Accordingly, how important a factor is and how much consideration it deserves will vary with each proposal. A specific factor may be given great weight on one proposal, while it may not be present or as important on another. However, full consideration and appropriate weight will be given to all comments, including those of federal, state, and local agencies, and other experts on matters within their expertise. 33 C.F.R. § 320.4(a)(3). “Under the ‘public interest’ review, the Corps conducts a general balancing of a number of economic and environmental factors and its ultimate determinations are entitled to substantial deference.” Town of Norfolk v. United States Army Corps of Eng’rs, 968 F.2d 1438, 1454-55 (1st Cir.1992) (citing Environ. Coal. of Broward County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir.1987)). In their motion for summary judgment, the Plaintiffs argue “not only that the Corps lacked sufficient information regarding the impact of constructing Phase II as originally conceived (a project that did not include the closure of Silk Farm/Dunbar-ton Road), but that the agency also lacked sufficient information regarding the impact of Phase II as actually proposed (a project that does include closure of the other road).” Pis.’Mot. at4. a. Traffic Impacts Plaintiffs make two public interest arguments regarding traffic: (1) that the Corps did not address the impacts of closing Dunbarton and Silk Roads; and, (2) that the Corps relied on conflicting statements about whether the project would increase or decrease congestion on Pleasant Street, and thus “lacked sufficient information regarding the impact of constructing Phase II as originally conceived [without the closure of Dunbarton and Silk roads].” Pis.’ Mot. at 4. i. Impact of Dunbarton and Silk Roads Plaintiffs argue that “[t]he City of Concord has not done any study, which specifically addresses the impact of closing off Dunbarton and Silk Farm Roads and building the hospital connector road.” Pis. ’ Mot. at 7 (quoting AR 2:266) (emphasis supplied by Plaintiffs). Plaintiffs assert that the 1998 RSG study did not address the closing of Silk Farm/Dunbar-ton roads because “the closure of these roads was only belatedly added to the project plan.” Pis. ’ Mot. at 7. The City responds that “Silk Farm Road is not a major public thoroughfare. It is a small country road running through the St. Paul’s School campus.” Def. Concord Obj. at 3. It asserts that the “information available from the extensive modeling performed in the numerous applicable traffic studies enables transportation experts to easily extrapolate the amount of Silk Farm Road traffic which would be diverted from Silk Farm Road to the Phase II Parkway.” Id. In addition, the City cites the 2001 Rizzo Report: Based upon the [RSG] results of the Build and Close Silk Farm Road model and a review of the roadway network north of Pleasant Street, one can conclude that the traffic remaining on Silk Farm Road (approximately 600 vpd) is the local traffic bound for St. Paul’s School. Silk Farm Road/Dunbarton Road provides a link between Clinton Street and Pleasant Street, and therefore the only segment of the bypass that would have substantial impact on this roadway segment is Phase II. The same diversion of traffic from Silk Farm Road to the Parkway can be expected for the Phase I construction as was projected for the Full Build. AR 6:21; Def. Concord Obj. at 3. The Corps also cites the same report, stating that “Plaintiffs incorrectly assert that the RSG study does not address the traffic impacts associated with the closures of Dunbarton and Silk Farm Roads.” Corps’ Opp’n at 3; Corps’ Mot. at 7. The Corps further states that “while the closure of Silk Farm Road was not modeled in combination with the construction of Phase II alone, it is only Phase II that would be impacted by the closure of Silk Farm Road, so the results of the model run with Phase II and III and the closure of Silk Farm Road can easily be extrapolated to Phase II as well.” Corps’ Mot. at 7 (citing AR 6:20-21, 595-96). The RSG report separately considered (a) traffic for Phase II alone, and also, in relevant part, (b) the full Northwest Bypass together with the closure of Silk Farm and Dunbarton Roads. AR 6:592. Thus, it did not explicitly consider the combination of Phase II alone together with the Silk Farm Road closure. However, there is evidence on the record that the results of such a combination were extrapolated from earlier reports and the closings will not adversely impact the project’s ability to fulfill its purpose. AR 6:20-21. Contrary to Plaintiffs’ protestations, this “extrapolation” is not an arbitrary and capricious analysis of the traffic impact of closing Silk Farm and Dunbarton Roads; instead it is a common-sense consideration of the available facts. ii. General Impacts of Phase II Plaintiffs first assert that the Corps relies upon “vague generalized references, by a City consultant or employee, to others’ studies, without identifying what those studies are, or without producing studies actually showing what the consultant or employee claim they have found, thereby leaving the Corps without the factual information necessary to reach its conclusion .... ” Pis. ’ Mot. at 5. They claim that the Corps’ “repeated invocation of ‘the City’s extensive traffic studies’ is entirely apocryphal.” Id. (internal citation omitted). The Rizzo Report dated September 12, 2001, which is part of the administrative record, belies the Plaintiffs’ contentions. The Report lists seven separate traffic studies completed by three firms, including two by Rizzo itself. AR 6:19. Throughout the Rizzo Report, the author repeatedly refers to findings in the other reports. The fact that the Rizzo Report refers to and summarizes those reports does not render the evidence suspect or incompetent anymore than a physician’s reliance on a radiologist’s report compromises his professional opinion. Plaintiffs also assert that the Corps relied upon conflicting conclusions regarding whether traffic on Pleasant Street will increase or decrease. Pis. ’ Mot. at 6 (citing AR 2:267, 6:19, 23). For this assertion, they cite their own expert, Laurie Rauseo, and point to her concerns about the conclusions in the RSG traffic volume study. Pis. ’ Mot. at 6. But, the Court has already determined that the Corps was not required to rely upon the Plaintiffs expert. Order on Pis. ’ Mot. for Prelim. Inj. at 14 (“The existence of opposing views does not render the Corps’s decision arbitrary and capricious.”); Franklin Sav. Ass’n v. Dir., 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 [agency] decision.”). The Plaintiffs also rely upon the 2001 Rizzo Associates Report, which states in relevant part that “Phase II removes traffic from South Fruit Street, Pleasant Street and Dunbarton Road, provides essential safety benefits and enhances the neighborhoods adjacent to these corridors” and that “[t]he additional traffic is what is expected with the new parkway. The direct access to the medical complex increases the vehicle trips to and from the south and west. In turn this provides for increased capacity on other road segments as volumes decline.” AR 6:19, 23. The Federal Defendants interpret this statement to mean that “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’ Mot. at 7. The Plaintiffs respond that the document relied upon by the Corps is “an opinion letter from a City consultant, rather than ... any of the purported studies themselves.” Pis. ’ Resp. to Corps at 3. The Federal Defendants further state that the reports on the record find that traffic volume at the “difficult Pleasanb-Fruifi-Warren Streets intersection” will be reduced and that “the traffic volume on Clinton, South Fruit, and Pleasant Streets to the east of Phase II, where vehicles now travel to reach Concord Hospital when exiting 1-89, was predicted to be lower with Phase II than without it.” Fed. Def.’s Opp’n at 2 (citing AR 6:18, 594-96). The Plaintiffs argue that the City’s consultant made this assertion without factual support. Pis. ’ Mot. at 6. But, this is incorrect. The consultant’s assertion summarizes the findings of other traffic reports and expressly refers to the findings of a “detailed traffic study prepared by Resource Systems Group, dated November 1996.” AR 6.19. The record shows that the Corps was not arbitrary and capricious in determining that though traffic from the South and West of the hospital will increase, current traffic problems will be alleviated to the North and East. This conclusion meets the project’s purpose to “relieve traffic congestion, and to allow the safe and efficient flow of traffic in this quadrant of the city.” AR 1:32. Further, the Corps’ reliance on the Rizzo Associates’ summary of other traffic studies was not arbitrary and capricious in the context of determining the traffic benefits of Phase II. b. Balancing Recreational and Educational Resource Impacts Plaintiffs argue that the Corps failed to “give sufficient weight to recreational and educational resource impacts.” Pis.’ Mot. at 8. Emphasizing both the physical activity opportunities offered by the Turkey River White Farm Trails system and the educational opportunities offered by the Concord School District’s School Environmental Education Project (Project SEE), Plaintiffs claim that the Corps did not sufficiently consider the impacts to these uses. i. Recreational Impacts Plaintiffs note that while the road would transect two trails at disparate points, the City proposes a single tunnel under the road. Pis. ’ Mot. at 9. Plaintiffs also refer to comments by the Concord Conservation Commission requesting additional measures to maintain the trails system, and state that the Corps “minimizes the degree of recreational impact, in conclusory fashion.” Pis. ’ Mot. at 10. The Corps responds that it considered these impacts in the EA, which states that the area “provides recreation and open space for people who reside around the area and many who come out from nearby parts of the city to use it.” Fed Def.’s Opp’n at 4 (quoting AR 1:33). In addition, the City asserts that the Corps weighed the impacts to recreational resources, requiring the tunnel under the bypass, and finding that some recreational uses would be “slightly diminished.” Concord Obj. at 4. In their reply, the Plaintiffs cite a letter from Mary Louise Hancock, Chair of the Turkey River Basin Trust, which states that the Trust “opposes the building of any roadway between Clinton and Pleasant Streets.” AR 2:484. Concerning recreational opportunities, the Corps clearly weighed the impacts of the project and included at least one mitigating element in the EA — the tunnel. The EA states: Having to see and cross under a new road to get out into the lager [sic] Turkey river floodplain tract, beyond the loom of city lights, would in many peoples [sic] mind [sic] diminish the value of the recreational experience to some degree. Hikers, bikers and cross country skiers will have to trek west of the bypass to have the sense that they are truly out, in the country. If memorial field is used for a point of access it will take a little longer to get out into the country. AR 1:37. The Corps considered the recreational impacts of the project, “evaluated relevant factors and reached a reasoned decision.” Van Abbema v. Fornell, 807 F.2d 633, 636 (7th Cir.1986); Audubon Naturalist Soc’y of the Cent. Atlantic States v. United States Dep’t of Transp., 524 F.Supp.2d 642, 691 (D.Md.2007) (“The law only requires that the Corps consider the factors and make a determination based from that analysis.”). ii. Educational Impacts The Plaintiffs assert that the EA provides “no discussion of the road’s .educational impact.” Pis. ’ Mot. at 12. The EA states that the area “serves as a convenient outdoor class room [sic] for the schools located nearby,” and that “[d]ue to its proximity to the school system it is also used in environmental education.” AR 1:33. The Corps responds with a record statement by the City that “[t]he educational value and access to these and other wetlands would not be expected to be negatively impacted by the Bypass; in fact these wetlands will be more easily accessible due to the construction of the sidewalk and bicycle path.” AR 6:156. The City claims that Plaintiffs cite no record evidence regarding negative impacts to school programs. City’s Obj. at 5. In their response, the Plaintiffs point to a description of the Project SEE, which describes the school system’s use of White Farm and the surrounding areas, and states that “[t]he area is used extensively by the school district as an outdoor science laboratory for kindergarten to high school grade levels.” Pis. ’ Reply to City at 4; AR 2:586. The document, for which the author is not specified, also states that Project SEE works with the Turkey River trust, with a joint purpose to “preserve the area in perpetuity as an open space resource for the Concord community.” Id. Based on this record, considering both the City’s statements on the record that the road would improve educational opportunities and the document regarding Project SEE, the Corps duly considered the educational impacts of the Parkway and was not arbitrary and capricious in its weighing of the Parkway’s impact on these resources. 3. Deference to State and Local Zoning and Land Use Decisions Plaintiffs claim that the Corps gave undue deference to state and local decisions in its reliance on 33 C.F.R. § 320.4(j)(2) and (4). In pertinent part, the regulations carve out a specific role for state and local decisionmaking: The primary responsibility for determining zoning and land use matters rests with state, local and tribal governments. The district engineer will normally accept decisions by such governments on those matters unless there are significant issues of overriding national importance. Such issues would- include but are not necessarily limited to national security, navigation, national economic development, water quality, preservation of special aquatic areas, including wetlands, with significant interstate importance, and national energy needs. Whether a factor has overriding importance will depend on the degree of impact in an individual case. 33 C.F.R. 320.4(j)(2). If there are no “overriding national factors of the public interest ... a permit will generally be issued following receipt of a favorable state determination provided the concerns, policies, goals, and requirements as expressed in 33 CFR parts 320-324, and the applicable statutes have been considered and followed....” Id. § 320.4(j)(4). The language in the EA mirrors these two sections of regulation, and states that “[t]he criteria for permitting the. discharge have been met.... The decision to use the land, for recreation or a road, properly belongs with the City and the State.” AR 1:42. At the outset, clarification is required concerning what these sections of the Federal Regulations allow the Corps to do. The sections cited by the Plaintiffs allow the Corps to defer to a “favorable state determination” only when federal requirements are also met. 33 C.F.R. § 320.4(j)(4). Thus, the Corps’ decision must meet not only the other relevant sections of regulation but also related federal statutes. Id. Plaintiffs’ arguments appear to claim that the Federal Government deferred the sum total of its decisionmak-ing responsibilities to state and local governments. This is assertion does not hold water. The Federal Government deferred to the state and local governments regarding land use and zoning, but made its own determinations regarding the federal requirements required for a section 404 wetlands permit. Plaintiffs first argue that “the defendant City’s decision to construct Phase II was not a zoning or land use decision falling within the jurisdictional exception intended by 33 C.F.R. § 320.4(j)(2).” Pis.’ Mot. at 17. Citing the fact that no zoning decision or land use ordinance was involved with the project, the Complaint states that “[t]he only decision was to construct a road with two private partners through wetlands, an area in which Army Corps responsibility is primary, and land use impacts are secondary effects outside the scope of jurisdictional exception contained in 33 C.F.R. § 320.4(j)(2).” Compl. ¶ 291. The Corps responds that the decision to build the road is a “land use” decision. Fed Def.’s Opp’n at 8. Plaintiffs argue that the Corps definition “would swallow whole much of the Army Corps’ independent jurisdiction.” Pis.’ Reply to Corps at 4. This claim is a non-starter. While the term “land use” is not defined in the regulations, Concord’s decision to build a road on its property is a “land use” determination, and the NHDES’ approval of the project is undoubtedly a land use decision. AR 6:48, 4:67-69; See Hoosier Envtl. Council, Inc. v. United States Army Corps of Eng’rs, 105 F.Supp.2d 953, 988 (S.D.Ind.2000); Sierra Club v. United States Army Corps of Eng’rs, 450 F.Supp.2d 503, 532-33 (D.N.J.2006). The Corps cannot second guess the City’s decision to build a road merely from a land use perspective. It can and does analyze the project based upon the considerations required by § 404 and the relevant regulations. Furthermore, the Corps’ jurisdiction is not at issue here — the regulations merely require it to take into account state and local decision-making, and then draw its own conclusion based on several factors, including the various impacts of the proposal. Second, Plaintiffs argue that the project falls within the “significant issues of overriding national importance” exception to § 320.4(j)(2), because it is covered by the exemption for “preservation of special aquatic areas, including wetlands, with significant interstate importance.” Pis.’ Mot. at 17 (quoting 33 C.F.R. § 320.4(j)(2)). The Corps made the determination that there is not an “overriding national factor” in this case. AR 1:42. This decision may be made “depending] on the degree of impact in an individual case,” and is owed deference by the Court. 33 C.F.R. § 320.4(j)(2). Because the Corps found that the degree of impact on the wetlands “are minor, unavoidable and adequately mitigated,” its decision that there is not an “overriding national factor” is not arbitrary and capricious. AR 1:42; 33 C.F.R. § 320(j)(2). Third, relying on Park v. United States, 286 F.Supp.2d 201 (D.P.R.2003), in which a disgruntled developer brought suit after being granted state permits but having the federal permits withheld by the Corps, Plaintiffs argue that deference based on § 320.4(j)(2) is an error of law. Pis. ’ Mot. at 17. In Park, the court' rightly stated that “[t]o posit that issuance of state permits guarantees the issuance of the Corps’ permit would serve to render the agency irrelevant and would annul its independent criteria.” 286 F.Supp.2d at 208. In this case, the Corps did not merely accept the conclusions drawn by state and local organizations, it analyzed the factors under the regulations and concluded that “[ajlter-natives have been considered, the impacts have been minimized to the maximum extent practicable and the applicant proposes to mitigate the unavoidable loss to the maximum degree practicable.” AR 1:42. Fourth, Plaintiffs claim that the Corps substituted the State’s decisionmaking for its own. However, as noted, the Corps incorporated state and local land use and zoning considerations into its larger § 404 permitting decision. Plaintiffs make specific allegations regarding the Corps’ reliance on state and local decisions elsewhere in their complaint and motions based upon specific Corps decisions, and the Court considers those assertions as they arise topically. However, Plaintiffs’ blanket argument regarding deference based upon 33 C.F.R. §§ 320.4(j)(2), (j)(4) is not convincing; the Corps did not act arbitrarily in its deference to state and local decision-makers on land use issues. Finally, in its motion, the Corps cites paragraphs 146 and 157 of the Plaintiffs Complaint as asserting that the Plaintiffs engaged in “issues prejudgment” and did not conduct an independent review of Phase II. Corps’ Mot. at 9 (citing Compl. ¶¶ 146, 157). The Corps asserts that it is allowed to “rely on studies done by the applicant or consultants, as long as the agency undertakes an independent evaluation of the information submitted and accepts responsibility for its accuracy.” Id. at 9-10 (citing 40 C.F.R. § 1506.5(a); 33 C.F.R. Part 325, App. B, § 3). The Corps further asserts that it “independently evaluated relevant studies supplied by the City, and considered all relevant factors including conservation, aesthetics, general environmental concerns, wetlands and historic properties.” Id. at 10. Plaintiffs do not respond to these arguments either in their motion or their responses. Based upon the record, the Court cannot find that the Corps failed to meet its duty to “independently evaluate the information submitted by the applicant....” 40 C.F.R. § 1506.5(a). 4. Wetland Mitigation The Plaintiffs assert that the Corps did not follow the provisions of its own Regulatory Guidance Letter (RGL) 02-2, which states that “[u]nder existing law, the Corps requires compensatory mitigation to replace aquatic resource functions unavoidably lost or adversely affected by unauthorized activities,” and that “[p]reservation does not result in a gain of wetland acres and will be used only in exceptional circumstances.” AR 7:21, :24. The RGL continues, “[i]f preservation alone is proposed as mitigation, Districts will consider whether the wetlands or other aquatic resources: 1) perform important physical, chemical or biological functions, the protection and maintenance of which is important to the region; and, 2) are under demonstrable threat of loss or substantial degradation from human activities” not caused by the applicant or otherwise avoidable. Id. at 7:24-25. Contrary to the Plaintiffs’ premise, in its Preliminary Injunction Order, the Court concluded that RGLs are not binding on the Corps. Northwest Bypass II, 470 F.Supp.2d at 51. It is true that the differences between binding substantive rules, and interpretive rules or policy statements are, at times, hazy. Substantive rules are binding, while “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” are generally not. 5 U.S.C. § 553(b)(3)(A); Syncor Int’l Corp. v. Sha-lala, 127 F.3d 90, 94 (D.C.Cir.1997); Nat’l Latino Media Coal. v. F.C.C., 816 F.2d 785 (D.C.Cir.1987). Accordingly, [a]n agency policy statement does not seek to impose or elaborate or interpret a legal norm. It merely represents an agency position with respect to how it will treat — typically enforce — the governing legal norm. By issuing a policy statement, an agency simply lets the public know its current enforcement or adjudicatory approach. The agency retains the discretion and the authority to change its position-even abruptly-in any specific case because a change in its policy does not affect the legal norm. Syncor Int’l Corp., 127 F.3d at 94. There are two means of determining whether “an agency has issued a binding norm or merely a statement of policy.” Wilderness Soc’y v. Norton, 434 F.3d 584, 595 (D.C.Cir.2006). One requires the court to ask whether the agency has “(1) ‘impose[d] any rights and obligations,’ or (2) ‘genuinely [left] the agency and its decisionmakers free to exercise discretion.’ ” CropLife Am. v. EPA 329 F.3d 876, 883 (D.C.Cir.2003) (quoting Cmty. Nutrition Inst., 818 F.2d at 946) (internal quotations omitted). The other is to look to the agency’s intent, considering three factors: “(1) the agency’s own characterization of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency.” Wilderness Soc’y 434 F.3d at 595 (quoting Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C.Cir.1999)). First, the RGL does not “impose any rights and obligations,” and continues to leave the agency free to exercise discretion when making wetland mitigation determinations. It provides a guideline for how mitigation decisions should be made, but not the outcome of those determinations. For example, it states that districts “will consider” certain factors when determining whether a preservation credit will be allowed to be the sole form of mitigation, but it does not dictate a particular outcome. AR 7:24. Second, considering the agency’s intent, the RGL states that it “does not modify existing mitigation policies, regulations, or guidance.” AR 7:21. It lists, in the appendix, existing authorities upon which the RGL is based, and states that it “does not establish new requirements.” AR 7:32. It was not published in the Federal Register or the Code of Federal Regulations, and the language in the RGL does not “evidence an intent on the part of the agency to limit its discretion and create enforceable rights.” Wilderness Soc’y, 434 F.3d at 596. The fact that the RGL “channels” the discretion of Corps employees is not, in itself, dispositive. Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 600 (5th Cir.1995). Thus, 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 U.S. Dist. LEXIS 47969, at *22, 2006 WL 1992626, at *7 (D.D.C. July 14, 2006); Hobbs v. United States,