Full opinion text
OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION, SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS’ OBJECTIONS, GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND GRANTING PLAINTIFFS’ MOTION FOR CLARIFICATION DAVID M. LAWSON, District Judge. This matter is before the Court on the defendants’ objections to a report filed by Magistrate Judge Charles E. Binder recommending that the plaintiffs’ motion for summary judgment be granted and the defendants’ cross motion for summary judgment be denied. The plaintiffs also have filed a motion seeking clarification of the magistrate judge’s report, which is addressed herein as well. The case was initiated by two environmental groups and one private citizen who contend that the United States Forest Service (Forest Service) and the United States Bureau of Land Management (BLM) violated their obligations under three federal acts in approving exploratory gas and oil drilling on a parcel of land within the Huron-Manis-tee National Forest. The plaintiffs ask this Court to review the agencies’ decisions under the Administrative Procedures Act, and they seek declaratory and injunctive relief. In their eight-count amended complaint, the plaintiffs allege that the defendants violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the National Forest Management Act, 16 U.S.C. § 1600 et seq., the Mineral Leasing Act, 30 U.S.C. § 181 et seq., and the Administrative Procedure Act, 5 U.S.C. § 555 et seq., by conducting a faulty environmental assessment (EA), improperly issuing a “Finding of No Significant Impact” (FONSI), and failing to prepare and issue an environmental impact statement concerning the project. The Court referred the matter to Magistrate Judge Charles E. Binder for general case management, although the reference was temporarily withdrawn to adjudicate a motion for preliminary injunction. The magistrate judge issued his report on the parties’ cross motions for summary judgment on June 20, 2006, and the defendants filed timely objections, to which the plaintiffs responded and the defendants replied. The Court has reviewed the file, the report and recommendation, the defendants’ objections, the responses, and replies, and has made a de novo review of the record in light of the parties’ submissions. The Court agrees with the magistrate judge’s conclusion that the defendants failed to comply with all of the procedural requirements of the National Environmental Policy Act, the environmental assessment is defective, and the finding of no significant impact is unsound. However, the magistrate judge did not address the plaintiffs’ claims under the National Forest Management Act or the Mineral Leasing Act, and as to those claims (which are the subject of the plaintiffs’ motion for clarification) the defendants are entitled to summary judgment. I. Summary of decision For reasons explained in detail below, the Court concludes as follows: First, The Forest Service acted arbitrarily and capriciously in finding that the leaseholder’s (Savoy Energy, L.P.) proposed drilling project would have no significant environmental impact. NEPA requires that federal agencies prepare an environmental impact statement (EIS) for all major federal actions that “significantly” affect the environment. Significance is measured by the context and intensity of impact. The Council on Environmental Quality’s (CEQ) regulations outline ten factors that federal agencies must evaluate when assessing the intensity of an action’s environmental impact. The defendants overlooked or insufficiently addressed at least four of the of CEQ intensity factors in issuing a FONSI. First, the Forest Service failed to study the possible impact of the project on the unique recreational characteristics of the Mason Tract, and the concomitant effect that a degradation of the recreational experience could have on tourism at the local, county, and state levels. Second, several effects of Savoy’s proposed project are highly uncertain, and the Forest Service has failed to explain why better data was not gathered. Third, the Forest Service did not address the impact the present action may have as a precedent for future decisions. Finally, the biological assessment is woefully inadequate in evaluating the possible impact of the drilling project on the Kirtland’s warbler, an endangered species. Cumulatively, these oversights raise substantial questions about the significance of the proposed project, and the contrary evidence suggests a significant environmental impact. Second, the Forest Service did not consider an appropriate range of alternatives to Savoy’s proposed drilling project as required by NEPA and CEQ regulations. NEPA requires agencies to consider any appropriate alternatives to a project that might alter the cost-benefit balance. Agencies may not define their own objectives in such narrow terms as to prevent the meaningful consideration of alternatives. Here, the Forest Service failed twice: first, the Forest Service did not take the requisite “hard look” at the “No Action” alternative because it felt constrained (unduly) by law and by the terms of Savoy’s mineral lease; second, the Forest Service did not consider alternative locations for the well’s bottom hole, imper-missibly deferring to Savoy’s project objectives despite the fact that an analysis of those alternative locations is more consistent with the Forest Service’s stated goals. The Forest Service’s failure to consider important aspects of the problem before approving drilling constitutes arbitrary and capricious agency action in violation of the Administrative Procedures Act. Third, the Court finds that the defendants are entitled to summary judgment on the plaintiffs’ claim under the National Forest Management Act alleging a violation of the Huron-Manistee National Forest Land and Resource Management Plan (LRMP) because the plaintiffs have failed to show that the Forest Service contradicted the terms of the LRMP. Although the LRMP establishes that disturbance to old growth forest shall be avoided where feasible and encourages the maintenance of a natural environment and the elimination of unnecessary roads, it balances these interests against the desire to promote mineral exploration. The drilling project in this case does not contradict the LRMP’s terms, and it appears to mesh with the spirit of the plan. Based on these circumstances and the fact that the Forest Service’s interpretation of the plan is entitled to considerable deference, the plaintiffs’ have failed to show arbitrary or capricious agency action. Fourth, the defendants are entitled to summary judgment on the plaintiffs’ claim under the Mineral Leasing Act because the plaintiffs have cited no legal authority for this claim. The plaintiffs allege that the defendants violated the MLA by contravening 43 C.F.R. § 3161.2. However, this regulation is phrased in very general, perhaps aspirational, terms. The plaintiffs seem to believe that section 3161.2 is violated every time NEPA is violated, but there is no authority for this novel proposition. Therefore, the Court will grant in part and deny in part each party’s motion for summary judgment, declare the EA and the FONSI inadequate, and enjoin the defendants from proceeding to authorize the proposed gas drilling project based on the FONSI. II. Facts and proceedings The Court takes the facts from the administrative record, although the plaintiffs have attempted to supplement the record with declarations. The parties have not filed the entire administrative record with this Court, but instead they have designated and submitted portions of the administrative record. In actions seeking review under the Administrative Procedures Act (APA), a court’s review is confined to the “whole record or those parts of it cited by a party.” 5 U.S.C. § 706 (emphasis added). In this case, the administrative record consists of seven binders of documents pertaining to the Forest Service’s decision, and six folders of documents pertaining to the Bureau of Land Management’s decision. Rather than producing the full record, the parties have chosen to produce and designate certain portions of the record for this Court’s review. Given the scope of review, this presents no obstacle to the Court’s ability to pass judgment. See 5 U.S.C. § 706. In 2002, the BLM, with the consent of the Forest Service, began leasing 9,500 acres of subsurface federal oil and gas resources within the Huron-Manistee National Forest. Under the terms of the leases, the leaseholders acquire mineral rights, but they must submit separate applications to obtain permits to drill on the surface land. The applications must be approved by the BLM, Forest Service, the Michigan Department of Environmental Quality (MDEQ) and the Michigan Department of Natural Resources (MDNR) before drilling can commence. Under an interagency agreement established between the Forest Service and the BLM in 1991, the federal agencies’ obligations are bifurcated; in essence, the Forest Service determines whether the surface aspects are consistent with federal law and policy, and the BLM addresses underground concerns. Pursuant to the agreement, the Forest Service takes the lead, but the decision to permit drilling and attendant surface operations is described as a collaborative effort: “A. General — No oil and gas operations involving surface disturbance on [Forest Service] lands are permitted without approval from the [Forest Service], The [Forest Service] shall have the lead for National Environmental Policy Act (NEPA) analysis and documentation for such operations. The BLM shall be responsible for addressing down-hole aspects of proposals. A single NEPA document is to be prepared to support all decisions to be made by [the Forest Service] or BLM on the proposed action, including decisions on off lease uses. NEPA documents shall be tiered to existing documents to the extent possible.” Pis.’ Mot. for Prelim. Inj., Ex. B, Environmental Assessment (EA) at 8 (quoting interagency agreement). Savoy Energy, L.P. (Savoy) holds three federal and three state subsurface mineral leases within the forest, comprising roughly 640 acres. In May 2003, Savoy filed an application with the BLM to drill a directional gas well into one of its lease holdings. Directional drilling involves entry of the surface at one point (the “top hole”) to access minerals located at another point (the “bottom hole”), which does not lie directly below the top hole. Savoy’s proposed development involves clearing, grading, and leveling a 3.5-acre well pad, preparing a production facility approximately 1.5 miles from the well, and constructing a pipeline connecting the two locations. In September 2003, responding to public concern over visibility, noise, and the effect of road alterations, Savoy withdrew its initial application and filed a second application for drilling, with a new location for the top hole and the production facility. The project’s dimensions did not change. Savoy’s proposal received significant public attention because the drilling target (i.e., the bottom hole) is beneath the Mason Tract, state land that is one of the most revered sections of forest in all of Michigan. The 4,700-acre Mason Tract was established in the 1950s by a gift to the State from naturalist George W. Mason. The gift was conditioned on a promise by the State to keep the land as a permanent game preserve, to limit camping significantly, and never to sell the land. See Michigan DNR Description of Mason Tract at http://www.michigan.gOv/dnr/0, 1607,7-153-30301_30505_31025-66206 — , 00.html (last visited July 8, 2008). In hon- or of his generosity, the state built a log-cabin chapel, known as the Mason Chapel, which today serves as a sanctuary for the fishermen, hikers, bicyclists, skiers, campers, hunters, and mushroom- and berry-pickers who frequent the area. Other development within the Mason Tract includes intermittent tree harvesting, and the maintenance of a cross-country ski trail, a campground, and the Mason Chapel parking lot. At present, the Mason Tract is accessible only by six miles of unimproved, seasonably passable roads. The South Branch of the Au Sable River runs through the Mason Tract. This stretch of river is described as “probably the best brown trout water in the Great Lakes Region, and it may be the best east of the Rockies.” Pis.’ Mot. for Prelim. Inj., Ex. M, DNR Au Sable River Plan at 2. It is also popular for canoeing. The South Branch of the Au Sable is home to two federally protected species, the Kirt-land’s warbler (which is endangered) and the bald eagle (which is threatened). Because the Mason Tract contains a “no surface occupancy” restriction, EA, App’x B at 14, Savoy proposes to engage in directional drilling, with a top hole located nearly half a mile southeast of the bottom hole. Therefore, although the ultimate drilling target is located beneath the state-owned Mason Tract, the top hole and the various drilling apparatuses would be positioned on federal land, in the Huron-Man-istee National Forest. Due to the environmentally sensitive nature of the region, the area surrounding the Mason Tract is designated by the Forest Service as a Semi-primitive Non-motorized (SPNM) area, “characterized by few and/or subtle human modifications with a large probability of isolation from the sites and sounds of others.” EA at 33. The SPNM area is mostly forested and, in 2003, the Forest Service designated the entire SPNM area an “old growth” region. The well pad, well head, and a portion of the pipeline would be located in this SPNM area. The production facility and the remainder of the pipeline would be located outside of the SPNM area, but still within the Kirtland’s Warbler Management Area. The area encompassing the production facility is designated Roaded Natural, and is characterized by a “predominately natural environment,” where “[evidence of the sights and sounds of humans is moderate but in harmony with the natural environment.” EA at 33. As part of the project, two Forest Service roads, FSR 4208 and FSR 4209, would be plowed to allow year-round vehicle access to the site. Both roads would be widened, some trees would be removed, and portions of the surface would be improved to permit easier access. In addition, fifty feet of new road would be added to FSR 4208 to allow access to the well pad. If the well is productive, construction of the production facility would require clearing approximately two more acres and installing a gas-water separator, oil and brine tanks, a dehydrator, a compressor, and monitoring equipment. The well pad and the production facility would be connected by approximately 1.7 miles of pipeline that would be buried alongside the roads. The project calls for up to six feet of additional roadside clearing to accommodate the pipeline. Construction of the well pad and access road would take approximately four days. The well itself would take another forty-five days to drill. If the well were productive, construction of the pipeline would require two weeks, and construction of the production facility would take another two months. Savoy proposes to complete all construction between December 1 and April 15, so as to minimize the disruption of the environment. In August 2004, the Forest Service issued an Environmental Assessment (EA) and a Biological Assessment (BA). These documents detailed Savoy’s proposed action, considered some alternative courses of action, and evaluated the impact of each alternative on the environment and forest wildlife. Based on these documents, Forest Supervisor Leanne M. Martin issued a Decision Notice and Finding of No Significant Impact (FONSI) on January 1, 2005, explaining that the environmental impact of the project was not expected to be significant. She approved Alternative 2, a slightly modified version of Savoy’s proposal. See Pis.’ Mot. for Prelim. Inj., Ex. A, FONSI at 1, 3-5 (describing Alternative 2 as “the same as the original Proposed Action as outlined above, with additional conditions of approval to the SUPO [Surface Use Plan of Operations] based on mitigation measures”). The additional measures attendant to Alternative 2 include placing stumps out of view on FSR 4209 and FSR 4208; the imposition of reporting requirements for changes in equipment; construction of a dike around the oil and brine tanks of sufficient size to contain 150% of the total capacity of the tanks; and capping the sound level audible from 1,320 feet at 36 decibels (as opposed to the 45-decibel cap set forth in Savoy’s proposal), in addition to a number of other noise-reduction measures. A “No Action” alternative was also considered. FONSI at 3; EA at 20. As its namesake suggests, the “No Action” alternative would simply amount to maintenance of the status quo. This alternative was rejected out of hand, however, because the Forest Service found that it “would not comply with the laws, regulations, policies and Forest Plan direction guiding mineral development on National Forest System ... lands.” FONSI at 20; EA at 3. According to the plaintiffs, the BLM approved Savoy’s application for drilling on August 4, 2005, relying on the Forest Service’s EA to reach that decision. The defendants have denied this allegation, but neither side has provided proof on this issue. The plaintiffs in this case, Anglers of the Au Sable, Tim Mason, and the Mackinac Chapter of the Sierra Club, commenced the present action on June 8, 2005 alleging that the defendants, the Forest Service and the BLM, have violated their duties under the National Environmental Policy Act, the National Forest Management Act, and the Mineral Leasing Act. The plaintiff thereafter filed an amended complaint (making a non-substantive change), and the Court referred the matter to Magistrate Judge Charles E. Binder for general case management pursuant to 28 U.S.C. § 636. On December 2, 2005, the plaintiffs filed a motion for a preliminary injunction, asking this Court to halt the commencement of the drilling project pending a final decision. Because the issue was time-sensitive, the Court decided to resolve the in-junctive motion itself instead of utilizing the longer report and recommendation process. On December 7, 2005, the Court granted preliminary injunctive relief. Anglers of the Au Sable v. United States Forest Serv., 402 F.Supp.2d 826 (E.D.Mich.2005). Following that decision, the Court referred the matter back to the magistrate judge for further proceedings consistent with the original order of reference. The parties’ cross motions for summary judgement followed, and the magistrate judge issued his report on June 20, 2006, 2006 WL 5908358. In his report, Magistrate Judge Binder recommended that the Court grant the plaintiffs’ motion for summary judgment, deny the defendants’ motion for summary judgment, enjoin the defendants from proceeding under the FONSI, and remand the matter to the defendants for further proceedings. Judge Binder found that the defendants had failed to adhere to NEPA’s guidelines and therefore acted in an arbitrary and capricious manner in issuing the FONSI. In concluding that the project’s impact would not be “significant” (such that a full-blown environmental impact statement was not necessary), Judge Binder suggested the defendants had paid only “lip service” to the relevant environmental regulations. R & R at 21. He viewed with skepticism the conclusion that a gas well drilling project that admittedly would alter scenic and primitive areas for up to 30 years, double noise levels in areas isolated from human contact, involve clearing old growth forest, and emit petroleum and engine exhaust odors would nave no significant environmental impact. He observed that the defendants actually conceded substantial environmental impact in the EA (without calling it such), but nevertheless issued a FONSI, engaging in a sort of non sequitur. Judge Binder identified four effects that amounted to significant environmental impacts: (1) the effect on visual aesthetics; (2) emission of odor; (3) noise levels; and (4) disruption of protected wildlife and old growth forest. Judge Binder also opined that the defendants gave superficial consideration to alternatives, and had engaged in improper segmentation (a practice whereby an agency understates a project’s potential impact by analyzing it in piecemeal fashion). Commenting on the biological assessment, the magistrate judge found the document to contain nothing but a conclusory assessment of the project’s likely impact on the Kirtland’s warbler and bald eagle. He suggested that the BA, and the FONSI which it informed, contained no “meaningful consideration of the Forest Service’s duty under the [Endangered Species Act] to encourage the propagation and diffusion of endangered species.” Id. at 26. In the end, therefore, Magistrate Judge Binder submitted that the plaintiffs were entitled to summary judgment on their claim alleging a violation of NEPA. However, although the motions before Judge Binder called for adjudication of all the plaintiffs’ claims, Judge Binder never addressed the claims under the National Forest Management Act or the Mineral Leasing Act. As a result, the plaintiffs have filed a motion for “clarification” of the report, asking this Court to adjudicate the NFMA and MLA claims. The defendants filed timely objections to the report and recommendation on July 26, 2006, and the plaintiffs responded thereto. The defendants filed a reply, and the matter is now ready for decision. III. Standard of review Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1). The Sixth Circuit has stated that “[ojverly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.2006). “The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). “ ‘[Objections disputing] the correctness of the magistrate’s recommendation but failing] to specify the findings ... believed [to be] in error’ are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). The motions in this case request summary judgement. Generally, summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When reviewing the decision of an administrative agency, however, a motion for summary judgment is merely the conduit to bring the legal question before the court; the usual tests of summary judgment, such as whether a genuine issue of material fact exists, do not apply. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999); see also City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir.2007) (“When a district court upholds on summary judgment an administrative agency’s final decision under the Administrative Procedure Act, this court ‘review[s] the district court’s summary judgment decision de novo, while reviewing the agency’s decision under the arbitrary and capricious standard.’ ”) (quoting Coalition for Government Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 457 (6th Cir.2004)); Pit River Tribe v. United States Forest Serv., 469 F.3d 768, 778 (9th Cir.2006) (“Because this is a record review case, we may direct that summary judgement be granted to either party based on our de novo review of the administrative record.”) (internal quotation marks omitted). Where the Court must rule based on review of an administrative agency’s final decision, review is governed by the Administrative Procedure Act. Carabell v. United States Army Corps of Eng’rs, 391 F.3d 704, 707 (6th Cir.2004). The APA provides that a court should set aside an agency's decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). To assess whether an agency has acted arbitrarily or capriciously, the Court should consider whether the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Because analysis of the relevant documents “requires a high level of technical expertise,” the Court must defer to “the informed discretion of the responsible federal agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); see also Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (“When examining this kind of scientific determination ... a reviewing court must generally be at its most deferential.”). The Court’s inquiry is “ ‘searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Although the review is confined to the administrative record, the Court may consult documents outside the record, such as the declarations submitted by the plaintiffs, to determine if there is any information the agency should have considered but did not. Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980); Thompson v. United States Dep’t of Labor, 885 F.2d 551, 555 (9th Cir.1989). IV. The defendants’ objections The defendants’ objections amount to an extension of the arguments made in support of their motion for summary judgment. The defendants defend the legitimacy of the methodology behind the FONSI, and argue that their ultimate conclusion was reasonable under the circumstances. The defendants have made two general objections, and seven specific objections. The general objections — that the magistrate judge failed to show that there was no “rational connection” between the facts found and the choice made; and that the magistrate judge failed to give adequate deference to the Forest Service’s decision — are so vague as to preclude meaningful review. They must be overruled. See Spencer, 449 F.3d at 725 (explaining that “[ojverly general objections do not satisfy the objection requirement”). Turning to their specific objections', the defendants first posit that the magistrate judge erred in concluding that the project would have a significant impact on the visual aesthetics of the area because he incorrectly suggested that FSR 4209 would fail to meet visual quality objectives under the project. They also state that the magistrate judge erred in suggesting road improvements would cause traffic to increase significantly in light of the modest nature of those improvements. Second, the defendants object to the magistrate judge’s analysis of noise levels because he focused on the potential noise level of a productive well rather than what the noise level would definitely be. They also point out that even if new wells were planned, they could not be built without additional drilling permits and additional environmental analysis. Moreover, the defendants believe that there is no evidence the noise levels that were bound to occur “would precipitate significant environmental impacts.” Defs.’ obj. at 8. Third, the defendants object to the magistrate judge’s finding that the drilling project would interfere with the preservation of old growth forest. Because the project only calls for the removal of 3.5 acres of the 3,505 acres designated as old growth, the defendants submit that there is no basis for a finding of significant impact. Fourth, the defendants contend that the magistrate judge erroneously found that the Forest Service did not adequately consider the “unique characteristics” of the area, including the Mason Tract. According to the defendants, “the Forest Service documented the unique ecological characteristics of both the Mason Tract and the Huron’s surrounding areas in detail.” Id. at 10. Unlike the magistrate judge, however, the defendants gave due weight to the fact that there are numerous active oil and gas wells within several miles of the proposed site, and yet visitors continue to perceive their recreational experience as “pristine.” Fifth, the defendants object to the magistrate judge’s finding that the Forest Service did not adequately consider alternatives. The defendants observe that the magistrate judge did not describe any feasible alternatives that should have been considered but were not. The magistrate judge suggested that the Forest Service should have considered drilling from more remote sites. However, the defendants state that these possibilities were considered, but they were rejected as “environmentally unsafe and technologically impractical.” Id. at 12. In the defendants’ view, consideration of three alternatives was sufficient to meet the demands of NEPA. They reason that “[t]ime and resources are simply too limited to hold that an [EA] fails because the agency failed to ferret out every possible alternative.” Id. at 14. Sixth, the defendants object to the magistrate judge’s observation that the Forest Service engaged in improper segmentation when conducting its analysis. The defendants state that the Forest Service was not required to consider in depth possible future drilling for two reasons. First, they claim that any additional wells could not be constructed without additional drilling permits, environmental analysis, and (of course) the discovery of valuable minerals. Since the drilling of additional wells is not imminent, analysis under NEPA is not necessary at this juncture. Second, the defendants argue that there was no improper segmentation because “the exploratory well has ‘independent utility,’ regardless of whether Savoy builds or does not build future wells.” Id. at 15. Finally, the defendants argue that the Forest Service sufficiently analyzed the potential impact on the Kirtland’s warbler and bald eagle. The defendants attack the magistrate judge’s conclusion to the contrary on the grounds that he (1) superficially based his decision on the number of paragraphs in the BA devoted to the species, and (2) cited no evidence to contradict the Forest Service’s finding. V. Discussion of the NEPA claim The National Environmental Policy Act requires that federal agencies prepare a detailed environmental impact statement whenever undertaking “a major Federal action” that will “significantly affect[ ] the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (emphasis added). The EIS requirement has twin aims. First, it obligates federal agencies to consider the significant environmental impacts of proposed actions. Baltimore Gas, 462 U.S. at 97, 103 S.Ct. 2246. Second, it ensures that the public is informed of the agency’s decision-making process and environmental concerns. Ibid. These aims do not require agencies to elevate environmental concerns above all other appropriate considerations. Rather, they simply demand that the agency take a “hard look” at the environmental consequences of a proposed action before taking an irreparable step. Ibid. Thus, NEPA’s mandate is merely procedural; it does not require particular outcomes. See Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 338 (6th Cir.2006). NEPA also established the Counsel on Environmental Quality (CEQ) to review and develop environmental policies for the nation. See 42 U.S.C. §§ 4341-47. The CEQ has promulgated regulations that help determine whether an EIS is needed — that is, to determine whether a project’s impact on the environment likely will be “significant.” See 40 C.F.R. § 1501.4. If it is unclear whether an EIS is needed — if the proposed agency action is neither one that typically requires an EIS, nor one that is categorically excluded from the EIS requirement — the CEQ regulations require the agency to prepare an environmental assessment (EA). 40 C.F.R. § 1501.4(b). An EA is a concise document that allows agencies to consider the environmental concerns associated with a proposed project while conserving agency resources for those projects in which a full EIS is required. Sierra Club v. Slater, 120 F.3d 623, 635 (6th Cir.1997); see also Louisiana Crawfish Producers Ass’n-West v. Rowan, 463 F.3d 352, 356 (5th Cir.2006) (describing an EA as “a rough cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary”) (internal quotation marks omitted). The EA is only a first step; it merely informs an agency’s decision either to prepare an EIS or to issue a FONSI, in which case an EIS would not be required. Charter Twp. of Huron, Mich. v. Richards, 997 F.2d 1168, 1174 (6th Cir.1993). No one questions that the proposed drilling plan in this case is a major federal action. See 40 C.F.R § 1508.18 (defining major federal actions as “actions ... potentially subject to Federal control and responsibility”). Rather, the present dispute centers on the defendants’ compliance with NEPA and with CEQ regulations in determining whether the impact of Savoy’s proposal would be environmentally significant, triggering NEPA’s EIS requirement. The plaintiffs contend that the Forest Service failed to properly assess the intensity of the environmental impact — including the effect of the project on the area’s unique characteristics, the controversy and uncertainty of the impact, the cumulative and precedential effects of the project, and the effect of the project on federally protected species. Additionally, the plaintiffs contend that the Forest Service violated their obligations under NEPA by failing to consider an adequate range of alternatives to the proposed project before issuing a decision notice. Many of the plaintiffs’ claims have merit and lead to the conclusion that the agency’s decision that the drilling project would have no significant environmental impact was arbitrary and capricious. A. The United States Forest Service incorrectly assessed intensity of impact CEQ regulations direct federal agencies to determine the “significance” of a project’s environmental impact by considering “both context and intensity.” 40 C.F.R. § 1508.27. Proper assessment of an impact’s intensity requires consideration of the following ten factors: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. (2) The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration. (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or breaking it down into small component parts. (8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. 40 C.F.R. § 1508.27(b). As long as the agency has engaged in a “reasoned evaluation of the relevant factors,” Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (internal quotation marks omitted), a conclusion that the environmental impact of a project is insignificant lies well within an agency’s discretion, see Cumberland Mountains, 453 F.3d at 341. However, as the Ninth Circuit has noted, in challenging an agency’s decision to issue a FONSI, “a plaintiff need not show that significant effects will infant occur [;] raising substantial questions whether a project may have a significant effect is sufficient.” Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1150 (9th Cir.1998) (internal quotation marks omitted); accord Shenandoah Ecosystems Defense Group v. United States Forest Service, 194 F.3d 1305, *7 (4th Cir.1999) (Table). The plaintiffs contend that the Forest Service failed to analyze several intensity factors properly in concluding that the proposed drilling will have no significant impact, and Magistrate Judge Binder agreed. For the reasons that follow, this Court concurs in some of those determinations but must reject others. 1. Unique characteristics CEQ regulations require an agency to consider the “[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, ... wild and scenic rivers, or ecologically critical areas” when determining whether a proposed project will have a significant environmental impact. 40 C.F.R. § 1508.27(b)(3). The plaintiffs contend that the drilling site in this case is home to unique human recreational experiences that will be significantly affected by the proposed action, and that the Forest Service failed to consider the effect of the proposed drilling on recreational tourism in the region and in the State. The plaintiffs produce the testimony of several of their members and other sympathetic persons to support their assertions. For instance, Charles Guen-ther, former Wildlife Chief for the Michigan Department of Natural Resources notes that “[t]he[] proposed clearing and site preparations would create a[n] irretrievable loss of hunting opportunity and certainly have a negative impact on the local economy, as hunters [would] locate in other areas for these recreational activities.” Guenther Dep. at ¶ 5. The defendants object to this and other testimony because it was not a part of the administrative record at the time of the FONSI. Although the defendants are correct that the plaintiffs may not augment the record by merely changing the quantum of information in it, see Overton Park, 401 U.S. at 416, 420, 91 S.Ct. 814, this Court is permitted to extend its review beyond the administrative record where the plaintiff alleges that an agency has neglected to mention a serious environmental consequence, or has “swept stubborn problems or serious criticism ... under the rug,” Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526-27 (9th Cir.1997) (internal quotation marks omitted). The plaintiffs’ evidence not only alerts this Court’s attention to an environmental consequence that was not addressed in any depth in the EA, but it also demonstrates the ease with which the defendants could have acquired additional information about recreational tourism. Recreational tourism was addressed in the EA by the Forest Service only in Appendix A, where it was identified as a “non-significant issue.” EA at 70. The Forest Service noted that “[i]n personal discussions with a Forest Economist in East Lansing, Michigan, there are many variables that influence the local economy and specifically tourism, not just one thing,” and that “[ojther wells drilled in the vicinity ... have not reduced the amount of tourism to the area.” Ibid. (errors in original). That same “Forest Economist” (he is actually an economist for the Forest Service) recommended that the Forest Service interview both local business owners and area visitors. However, there is no evidence that the Forest Service conducted such a survey, yet the outpouring of public comments — including comments from Michigan’s Governor, the County of Crawford, and the Michigan Environmental Council, among others — suggests that the project’s impact on recreation and tourism could be substantial. When the issue was repeatedly raised again during the public comment period, the Forest Service responded with references to the mitigation measures adopted (regarding noise and visual quality) and to Appendix A of the EA. Magistrate Judge Binder did not address the impact of the project on unique recreational experiences in his report; he nevertheless concluded that both the EA and the FONSI merely paid “lip service” to the unique characteristics and ecologically critical areas of this section of the forest, “effectively disregard[ing]” these considerations in reaching their conclusions. R & R at 21. Citing three factors — visual quality, noise, and old growth tree stands — Judge Binder stated that the Forest Service’s analysis amounted to a “non-sequitur.” Id. at 20. The defendants contend that Judge Binder erred by not affording the conclusions of the Forest Service appropriate deference. It is true that the Forest Service’s treatment of this intensity factor is arbitrary and capricious if its conclusion that the impact would not be significant runs counter to the evidence that was before the agency and is so implausible that it cannot be ascribed to a difference in view or to agency expertise, or if the Forest Service failed to consider a unique characteristic of the project area. Motor Vehicle Mfrs. Assn., 463 U.S. at 43, 103 S.Ct. 2856. The defendants point to the analysis in the EA of the three factors referenced above by Judge Binder — visual quality, noise, and old growth forest — and provide an explanation for why these factors will not be significant: first, the only road which will not meet the Visual Quality Objective for the SPNM area within one growing season is FSR 4208, “a tiny fragment of the 977,326-acre Huron Forest,” Defs.’ Obj. at 5; second, even with the foreseeable development of three additional wells, the noise from the production facility would not exceed existing noise standards and would be subject to oversight from the Department of Environmental Quality; third, the project calls for the removal of only 0.099% of South Branch old growth forest, which would have no appreciable effect on the old-growth tree stand or on wildlife dependant on old growth trees. In providing the appropriate level of deference, the Court may not “substitute [its] judgment of the environmental impact for the judgement of the agency.” Kelley v. Selin, 42 F.3d 1501, 1518 (6th Cir.1995) (internal quotation marks omitted). In determining that the project would have no significant impact on the unique characteristics of the area, the Forest Service supported its conclusions with reference to the evidence it had gathered, and in that aspect the decision cannot be considered arbitrary when confined to consideration of visual quality, noise, or old growth tree stands. However, this Court cannot accept the defendant’s assertion that it has taken a “hard look” at the effects of the proposed action on the unique recreational aspects of the area. Both the evidence provided by the plaintiffs and the evidence contained within the administrative record raise substantial questions about the significance of this project’s effects on an area renowned for its recreational opportunities. The defendants’ contention that “many variables ... influence the local economy and specifically tourism, not just one thing” does not reheve the burden set by NEPA to examine thoroughly and critically the influence of the project on this “one thing”: recreation and tourism. The Court concludes that the defendants “entirely failed to consider an important aspect of the problem,” Motor Vehicle Mfrs. Assn., 463 U.S. at 43, 103 S.Ct. 2856, rendering their decision arbitrary and capricious. 2. Controversy and uncertainty CEQ regulations require an agency undertaking a major federal action to consider the extent to which the proposed action is both “highly controversial” and “highly uncertain.” 40 C.F.R. §§ 1508.27(b)(4)-(5). Although these factors are not “categorical rules that determine by themselves whether an impact is significant,” Spiller v. White, 352 F.3d 235, 243 (5th Cir.2003), the presence of controversy or uncertainty will often lead courts to require a full-blown EIS, see, e.g., Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 736-37 (9th Cir.2001). Because the level of controversy and uncertainty must be “high” to warrant consideration, the Court considers only controversy and uncertainty that raise substantial questions about the significance of the project’s environmental impact. See Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1240 (9th Cir.2005) (“Simply because a challenger can cherry pick information and data out of the administrative record to support its position does not mean that a project is highly controversial or highly uncertain.”). The Sixth Circuit has not yet established a test to determine which impacts are “highly controversial” within the meaning of 40 C.F.R. § 1508.27(b)(4), but most jurisdictions agree that the term means more than mere public opposition; it requires “a substantial dispute ... as to the size, nature, or effect of the major federal action.” Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 234 (5th Cir.2006) (internal quotation marks omitted); see also Ind. Forest Alliance, Inc. v. United States Forest Serv., 325 F.3d 851, 857 (7th Cir.2003); Town of Cave Creek v. F.A.A., 325 F.3d 320, 331 (D.C.Cir.2003); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998); North Carolina v. F.A.A., 957 F.2d 1125, 1133-34 (4th Cir.1992) (noting that allowing bare opposition to suffice as controversy would open agency action to “gov-ernfance] by a heckler’s veto”) (internal quotation marks omitted). A substantial dispute exists when “evidence, raised prior to the preparation of an EIS or FONSI, casts serious doubt upon the reasonableness of the agency’s conclusions.” Nat'l Parks, 241 F.3d at 736 (internal citation omitted). Such evidence generally challenges the scope of the scientific analysis, the methodology used, or the data presented by the agency. See Blue Mountains, 161 F.3d at 1212-13 (citing the Forest Service’s failure to consider the recommendations and data of an independent scientific report that ran contrary to the proposed action as evidence of controversy); Sierra Club v. United States Forest Serv., 843 F.2d 1190, 1193 (9th Cir.1988) (pointing to “affidavits and testimony of conservationists, biologists, and other experts who were highly critical of the EAs and disputed the Forest Service’s conclusion that there would be no significant effects from logging because the sequoias could be protected and their regeneration enhanced,” and concluding that “this is precisely the type of ‘controversial’ action for which an EIS must be prepared”). Even in the face of a substantial dispute as to the size, nature, or effect of the proposed action, an agency must have the discretion to rely on the reasonable findings of its chosen expert. See Marsh, 490 U.S. at 377-78, 109 S.Ct. 1851. Therefore, an agency that considers the dispute and addresses any concerns in its final decision likely will survive the very narrow review standard under the APA. Forest Alliance, 325 F.3d at 858 (holding that an agency’s consideration and resolution of the dispute is properly thought of as a second step in the controversy analysis); accord Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1122 (9th Cir.2000). In alleging that the proposed drilling is likely to be highly controversial, the plaintiffs point to concerns expressed by the Department of Environmental Quality, the Michigan Environmental Council, the Michigan Department of Natural Resources, the County of Crawford, Governor Granholm, United States Senators Carl Levin and Debbie Stabenow, United States Representative Bart Stupak, Michigan Representative Matt Gillard, Michigan Trout Unlimited, and numerous private commentators, including a biology professor and citizen whose “granddad knew Mr. Mason.” Pl.’s Br. in Supp. at 18-20; Exs. O and P, Excerpts of Comments. Most of these concerns focus on the visual impact and noise of the project. Magistrate Judge Binder considered this evidence and agreed with the plaintiffs, concluding that “the intensity of the public comment made at every opportunity makes clear that this project is ‘likely to be highly controversial’ within the meaning of the CEQ regulations.” R & R at 21. However, the plaintiffs demonstrate only mere public opposition; they present no evidence disputing the size, nature, or effect of the project. At no point do the plaintiffs assert that the defendants failed to analyze some likely effect of the proposed drilling, nor do they challenge the credibility of the defendants’ experts, data, or methodology. Instead, the plaintiffs cite general concerns about the impact of the drilling and criticisms of the EA. The plaintiffs are not entitled to manufacture controversy in such a manner. The words of the Sixth Circuit are instructive here: So long as mining involves the initial destruction of the earth’s surface, it will have some near-term effect on the environment. The critical question is what the company proposes to do about it. The company in this instance responded to initial concerns that the agency raised about the application, proposed measures to mitigate the near-term damage to the environment and proposed measures designed to restore the environment to its pre-mining state. In addition to raising these concerns, the agency thoroughly examined the application and the environmental consequences of granting the license. Under these circumstances, the agency did what the law required it to do ... and its decision that the effects of the mining would not be significant lay well within its discretion. Cumberland Mountains, 453 F.3d at 341. Moreover, requiring an EIS based on nothing more than public controversy over the significance of the effects disclosed in the EA penalizes an agency for precisely the type of candid disclosure that NEPA seeks to promote. See Native Ecosystems, 428 F.3d at 1240. Additionally, the Forest Service has considered and responded to the concerns raised in a variety of ways: negotiating with Savoy to move the wellhead, implementing mitigation measures to reduce the visual impact as well as the impact from noise and odor, and addressing reclamation of the site when the well ceases to be productive. In fact, two of the agencies cited by the plaintiffs as expressing concerns — the Michigan Department of Environmental Quality and the Michigan Department of Natural Resources — eventually approved the proposed drilling. Therefore, considering that the plaintiffs have failed to produce evidence of a substantial dispute that rises above mere public opposition and to demonstrate that the Forest Service did not consider and address the public concerns in their final decision, and because the command of NEPA is, in the main, procedural, the Court finds that the environmental impact of the proposed drilling project is not highly controversial within the meaning of the CEQ regulations. However, the determination of “significance” also turns on whether the environmental effects of a proposed agency action are highly uncertain or involve unique or unknown risks. 40 C.F.R. § 1508.27(b)(5). Although no hard-and-fast rule is available to determine the certainty of environmental impacts, the Ninth Circuit has tied the requirement to the purpose motivating an EIS generally: Preparation of an EIS is mandated where uncertainty may be resolved by further collection of data, or where the collection of such data may prevent “speculation on potential ... effects. The purpose of an EIS is to obviate the need for speculation by insuring that available data are gathered and analyzed prior to the implementation of the proposed action.” Nat’l Parks, 241 F.3d at 732 (quoting Sierra Club, 843 F.2d at 1195) (alteration in original) (internal citations omitted). Where an EA lacks certainty on one or more issues, it is the responsibility of the agency to provide a “justification regarding why more definitive information could not be provided.” Blue Mountains, 161 F.3d at 1213 (internal quotation marks and citation omitted). “[L]ack of knowledge does not excuse the preparation of an EIS; rather it requires the [agency] to do the necessary work to obtain it.” Nat’l Parks, 241 F.3d at 733. Review of the administrative record in this case highlights four areas of uncertainty: impact from automobiles, impact from odors, effect on wildlife, and effect on tourism. In the EA, the Forest Service predicts that road improvements could create a “minor longterm increase in vehicle traffic,” as “[pjeople with sedans are more likely to drive down an improved road.” EA at 38. The Forest Service speculates that “[s]ome visitors might notice the increase in traffic which could impact their recreational experience.” Ibid. Given the low density of traffic on FSR 4209 — four to seven vehicles per day in the summer— the addition of a single car per day could increase the likelihood of a visitor encountering the accompanying sights, sounds, and smells by as much as 25%. The Forest Service neither provides quantifiable information about the likely increases in traffic nor attempts to justify the absence of such information. Although the EA identifies three sources of odor that could impact visitors to the forest, it provides only conclusory statements about the duration and intensity of odors while failing to cite a source for this information. First, the EA states that drilling would produce burning hydrogen sulfide on “several” occasions, each lasting about one to two weeks, that would be detectable “hundreds of feet in the down wind area of the drilling pad.” EA at 44. Second, the production facility would produce compressor exhaust and fumes from petroleum storage. The Forest Service asserts that, although the odor would be detectable “in the immediate vicinity,” it would not be detectable in the SPNM area, and “would not likely be detectible to people driving by the production facility most of the time.” Ibid. Third, the construction of the well pad, the road improvements, and the drilling phase would result in odors from heavy equipment that would be detectable at “a few hundred feet.” Ibid. The record contains no data whatsoever supporting the Forest Service’s vague assertions regarding the duration and intensity of these odors. The EA also acknowledges that the proposed action would result in “temporary or permanent displacement” of some wildlife in the area, and the possible killing of species that have “limited dispersal capabilities,” yet denies that the project would have any impact on the viability or habitat of wildlife in the project area. Id. at 60-61. At least part of the justification for this conclusion is that the project area comprises less than two percent of the analysis area. Id. at 61. The EA does not explain why such a large area was analyzed, nor does the use of this broad-context analysis alleviate the burden on the Forest Service to address the certainty of the impact on wildlife in the immediate vicinity of the project. See Anderson v. Evans, 371 F.3d 475, 490-92 (9th Cir.2004) (requiring an EIS where the effects of whaling on a small group of gray whales was highly uncertain, despite certainty that the project would have no significant effect on the broader gray whale population). The EA also notes that construction will provide foraging habitat for the brown-headed cowbird, but provides no analysis of how an increase in the population of the cowbird — a notorious “nest parasite,” Pl.’s Mot. for Summ. J., Ex. Q, FWS Fact Sheet re Kirtland’s Warbler at 2 — may affect other species in the area. Finally, the EA provides no analysis on how construction may affect tourism beyond noting that some visitors may choose to go elsewhere. The record reflects a partial explanation for the lack of information. A Forest Service economist indicated that the suggested method for assessing the impact drilling might have on tourism — correlating tourism with the number of active oil and gas wells in the county — would be unreliable. The economist suggested that a better approach might simply be to interview business owners and area visitors. But the Forest Service never conducted the suggested survey, and instead concluded that the effect on tourism is a non-significant issue. Although perhaps the failure of data or analysis on a single issue discussed above may not demonstrate findings that are “highly uncertain,” the accumulation of numerous vague, conclusory, and incomplete analyses certainly raises “substantial questions” about the possible significance of the project’s impact. The Court finds that this uncertainty is enough to trigger an EIS. 3. Precedent and cumulative impact In assessing intensity, an agency is required to evaluate both the cumulative impact of a proposed action, defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions,” 40 C.F.R. § 1508.7, and the degree to which a proposed action may establish a precedent for future actions, 40 C.F.R. §§ 1508.27(b)(6)-(7). Here, the analysis of the project’s cumulative impact was not contested beyond an improper segmentation claim that fails because the Forest Service is not currently considering any other proposed projects, even if further development is reasonably foreseeable. However, the outcome of this project likely sets a precedent for future drilling in the region, an effect that was not considered in the EA. CEQ regulations require agencies to consider whether a proposed action is related to other actions “with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(7). One purpose of this requirement is the prevention of improper segmentation of a project. Improper segmentation occurs when a project that normally would require an EIS is subdivided into component parts that individually have no significant environmental impact. Highway J Citizens Group v. Mineta, 349 F.3d 938, 962 (7th Cir.2003). The standard test for improper segmentation is whether “the proposed component action has little or no independent utility and its completion may force the larger or related project to go forward notwithstanding the environmental consequences.” Hirt v. Richardson, 127 F.Supp.2d 833, 842 (W.D.Mich.1999); see also Historic Pres. Guild v. Burnley, 896 F.2d 985, 99—92 (6th Cir.1989) (noting that when two proposed