Coalition for the Advancement of Regional Transportation v. Federal Highway Administration (959 F. Supp. 2d 982, 2013)

Citations

959 F. Supp. 2d 982

Full opinion text

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, District Judge.

The Court now considers a variety of motions concerning the Louisville-Southern Indiana Ohio River Bridges Project (the “Project”). In general, Defendants, the Federal Highway Administration (“FHA”), the Kentucky Transportation Cabinet (“Kentucky”), the Indiana Department of Transportation (“Indiana”, and collectively with Kentucky, the “States”) and various individuals associated with each, seek dismissal of the remaining legal challenges associated with the Project.

Plaintiff, Coalition for the Advancement of Regional Transportation (“CART”), maintains twenty separate claims against Defendants. CART is a volunteer-member, tax exempt § 501(c)(3) organization that promotes modern transit planning, especially encouraging the introduction of light rail to urban transit systems. Though CART asserts a number of claims arguing that Defendants failed to comply with federal statutory mandates, and otherwise abused their discretion in the planning and implementation of the Project, its general contention is more normative. It believes that vehicular traffic will decline in future years, making the Project both unnecessary and in all likelihood, unable to obtain adequate funding to service construction loans taken out to finance the Project. CART maintains that other alternatives, even abandoning the Project altogether, would better serve the community.

The Court’s Memorandum Opinion is based upon the extensive Administrative Record that details all that has occurred in the past twenty years leading up to the ultimate selection of the Project’s design. In the course of this Opinion, the Court will not address every issue raised in the media and elsewhere concerning the Project, nor will the Court speculate about future issues or concerns. It will, however, address each of CART’s general and specific claims. Though reasonable minds could certainly disagree about the necessity of the Project and various decisions made in furtherance of it, it is not the role of the Court to endorse one opinion over the other. Rather, the Court has been careful to distinguish policy disagreements from Defendants’ obligations to follow certain statutory procedures and refrain from taking actions found to be arbitrary and capricious.

Currently, three bridges provide transit across the Ohio River between Jefferson County in Kentucky and Clark County in Southern Indiana. Beginning with the western-most bridge, the Sherman Minton Bridge carries 1-64 traffic between West Louisville and New Albany, Indiana. About four miles to the east is the downtown George Rogers Clark Memorial Bridge, which carries U.S. 31 traffic across the Ohio River. Finally, less than half a mile to the east of the Clark Memorial Bridge lies the John F. Kennedy Memorial Bridge (“Kennedy Bridge”), which carries 1-65 traffic between downtown Louisville and Jeffersonville, Indiana.

Over the course of a decade, Defendants investigated cross-river traffic issues and the possibility of alleviating problems by building a fourth bridge in East Louisville and reconstructing the existing transportation infrastructure. This culminated in the Project, which is a roughly $2.6 billion construction and transportation management program designed to improve mobility across the Ohio River between Louisville and Southern Indiana. The Project addresses current cross-river traffic congestion and safety needs, provides better navigability within the existing transportation system, and improves cross-river mobility, especially in light of existing and anticipated population and employment patterns in the region. In its current iteration, the Project includes the following five major elements:

• Downtown Crossing: Defendants will reconstruct, expand, and reconfigure the Kennedy Bridge. The existing but reconstructed Kennedy Bridge will carry six lanes of southbound 1-65 traffic. Defendants will construct a new bridge parallel to and immediately upstream of the Kennedy Bridge, and this new span will carry six lanes of northbound I-65 traffic. Defendants will also reconstruct the downtown Louisville I-65/1 — 64/1—71 Kennedy Interchange (“Kennedy Interchange”) and approach roadways in Jeffersonville, Indiana.

• East End, Crossing: Defendants will construct a new bridge connecting KY 841 (Gene Snyder Freeway) in eastern Jefferson County, Kentucky, with S.R. 265 (Lee Hamilton Highway) in eastern Clark County, Indiana. The East End Crossing will not be part of the Interstate system.

• Tolling: Defendants will place electronic tolling facilities on the expanded and reconstructed Downtown Crossing (both directions) and the new East End Crossing to assist in financing the Project.

• Transportation Management: Defendants will provide enhanced funding for bus service.

• Mitigation Commitments: Defendants will plan and implement various mitigation strategies aimed at ameliorating potential impacts on the natural and human environment resulting from the Project’s implementation.

Since the Project’s conception, Defendants have undergone various phases of planning and implementation. For purposes of this Memorandum Opinion, the Court will briefly summarize the pertinent events bearing on the Court’s decision.

From 1991 to 1994, Kentucky and Indiana sponsored the Metropolitan Louisville Ohio River Bridge Study, which examined four potential cross-river bridge locations. The study recommended further evaluation of two bridge locations in the “Near East” (near the terminus of I-264) and in the “Far East” (near the termini of KY 841 and S.R. 265). In 1995, based on that preliminary study, the Kentuckiana Regional Planning and Development Agency initiated the Ohio River Major Investment Study (“ORMIS”). That study evaluated a wide range of potential transportation schemes to improve cross-river mobility. Ultimately, ORMIS recommended a two-bridge solution, which entailed the construction of a downtown bridge adjacent to the Kennedy Bridge, reconstruction of the Kennedy Interchange, and construction of a bridge in the Far East.

To pursue this recommendation, the States sought federal assistance. To receive federal funding for transportation projects, the FHA must verify that applicants comply with the National Environmental Protection Act (“NEPA”). NEPA prescribes a process that federal agencies must follow before taking any action that significantly affects the environment. Most of the claims in CART’s complaint concern the NEPA-mandated process. Therefore, the Court finds that this process warrants considerable discussion.

The FHA initiates the NEPA process by publishing a Notice of Intent to prepare an environmental impact statement (“EIS”). 40 C.F.R. § 1508.22. Following the issuance of the Notice of Intent, the agency prepares a Draft EIS. 40 C.F.R. § 1502.9. The EIS must provide a “full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. Alternative actions, including a No Action Alternative required to be considered by 40 C.F.R. § 1502.13(d), are measured against the Purpose and Need Statement, which explains why the agency is proposing to spend federal money on an action that potentially results in significant environmental impacts. 40 C.F.R. § 1502.13 (“The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.”).

Once the agency publishes the Draft EIS, the public may submit comments in response. Next, the agency must issue a Final EIS, which accounts for public comments, addresses opposing views not already discussed in the Draft EIS, and incorporates any further information necessary to justify implementation of the proposed project. 40 C.F.R. § 1502.9. Finally, the FHA will issue a Record of Decision (“ROD”) approving the final proposed action prior to its implementation. Occasionally, the FHA must prepare a supplemental EIS to respond to “substantial changes in the proposed action that are relevant to environmental concerns” or “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Id. If the agency issues a supplemental EIS after the ROD, the agency must prepare a revised ROD. 23 C.F.R. § 771.127(b).

On March 27, 1998, the FHA published the Notice of Intent to prepare an EIS based on the ORMIS recommendation. Next, in preparing the Draft EIS, Defendants evaluated the region’s transportations issues to compose the Project’s Purpose and Need Statement. According to CART, the parties generated the Purpose and Need Statement simply to bring the preexisting bridge plan to fruition, and therefore, Defendants failed to consider the merits of other needed transportation projects. Defendants outline a much more substantive and collaborative process for developing the Purpose and Need Statement. Defendants then identified and analyzed a range of alternatives that could possibly meet the Project’s objectives.

The FHA published the Draft EIS in November 2001, and a 101-day public comment period followed. The FHA then published the Final EIS in September 2003, reflecting consideration of public input, potential environmental impacts, and possible adaptions to reduce residual problems.

The Final EIS initially screened a variety of alternatives that can be categorized into five major groups:

• Transportation System Management Alternatives (e.g., traffic signal timing and coordination and HOY lanes);

• Transportation Demand Management Alternatives (e.g., carpooling and congestion pricing);

• Mass Transit Alternatives (e.g., rail transit and enhanced bus service);

• Bridge/Highway Alternatives (including five potential cross-river bridge and highway combinations, Kennedy Interchange reconstruction, and a river tunnel alternative); and

• No Action Alternative.

Following the initial screening, Defendants advanced three groups of alternatives that most closely met the tenets of the Purpose and Need Statement: the Transportation Demand Management Alternatives, the Bridge/Highway Alternatives in three locations (Far East, Near East, and Downtown), and the legally required No Action Alternative.

In its secondary analysis, Defendants further evaluated Bridge/Highway Alternatives as to the three proposed bridge locations. Defendants engaged in an investigation of nine potential highway and bridge alignments, each of which included either a One Bridge/Highway or a Two Bridges/Highway Alternative. The inquiry analyzed traffic congestion and traffic safety problems on the existing Ohio River bridges and within the Kennedy Interchange. The FHA considered then-current economic conditions and growth projections based on historical trends and local land use plans. Using this information, the Final EIS identified specific performance measures to evaluate the alternatives and their potential to meet the Purpose and Need Statement.

The Final EIS then advanced four primary alternatives for the Project: the No Action Alternative, the Transportation Management Alternatives, One Bridge/Highway Alternatives, and Two Bridges/Highway Alternatives. Ultimately, Defendants concluded that a Two Bridges/Highway Alternative, called the Selected Alternative, would best meet the Purpose and Need Statement because this option would provide a feasible and prudent long-term solution to the region’s cross-river mobility needs.

In September 2003, the FHA issued the ROD, which ratified the Selected Alternative. That scheme entails construction of the East End and Downtown Crossings, and incorporates various transportation management strategies, including enhanced bus service. At that time, Defendants estimated that the Project would cost $4,068 billion.

Having chosen the Selected Alternative, Defendants next focused on funding the Project. In October of 2007, the States submitted the Project’s Initial Financial Plan (“IFP”) to the FHA, which proposed to entirely fund the Project with traditional federal and state revenue sources. However, by 2009, the relevant parties discovered that only $1.9 billion would be available from traditional sources, leaving a funding shortfall of $2.2 billion.

In response, the Kentucky General Assembly enacted legislation establishing the Louisville and Southern Indiana Bridges Authority (the “Bridges Authority”) empowered to create and oversee financial planning for the Project. The Bridges Authority, working with the States, explored various alternative funding methods. In 2010, it submitted an updated IFP, listing tolls as a potential funding option. The Bridges Authority projected revenue from tolling to generate between $800 million and $1.2 billion in additional funding, which when combined with traditional funding sources, would satisfy the Project’s funding requirements. In early 2011, the States presented design modifications believed to be capable of reducing the total cost of the Project by $1.2 billion.

As a result of comprehensive changes to the design and funding of the Project and public concern over potential tolling, the FHA and the States decided to prepare a Supplemental EIS for public review and comment. The Supplemental EIS included updated transportation forecasts and demographic data based on a new “time of day” model that forecasts traffic and congestion at key times of the day. The new modeling indicated that while some traffic volumes and congestion rates had changed, the basic needs for the Project were still valid. The Supplemental EIS formulation process resulted in the public circulation of an Alternatives Evaluation Report, which re-assessed the alternatives analyzed in the Final EIS in light of the updated data. The report considered the implementation of One Bridge/Highway Alternatives without tolls. Importantly, that evaluation confirmed that One Bridge/Highway Alternatives failed to address the full range of cross-river mobility needs identified in the reaffirmed Purpose and Need Statement. Consequently, Defendants did not conduct an in-depth financial feasibility analysis of those alternatives.

Ultimately, Defendants affirmed the Selected Alternative as the preferred option. However, Defendants acknowledged that non-tolled alternatives alone would be insufficient to fund the Project. Therefore, Defendants recommended a new alternative, the Modified Selected Alternative, which incorporated financing from both traditional sources and toll-based revenues, the States’ proposed cost-saving design changes, and the originally selected bridge locations.

In November 2011, the FHA issued the Supplemental Draft EIS for public comment. On April 20, 2012, the FHA published the Supplemental Final EIS, which evaluated the No Action Alternative, the Final EIS Selected Alternative, and the Modified Selected Alternative based on updated socioeconomic and environmental data. It identified the Modified Selected Alternative as the best scheme to meet the Project’s purpose and need. Finally, on June 20, 2012, the FHA issued the Revised ROD confirming the Modified Selected Alternative as the preferred option.

Turning to the substance of the Supplemental Final EIS, NEPA requires an EIS to evaluate the Project’s environmental consequences. 40 C.F.R. § 1502.10. The Supplemental Final EIS includes a chapter entitled, “Environmental Consequences”, which discusses the potential environmental impacts of each alternative, including impacts on socioeconomics, water quality, wetlands, air quality, wildlife, endangered species, land use, historic resources, noise, and aesthetics. 40 C.F.R. § 1502.16. The FHA consulted federal and state agéncies in preparing this chapter. Specific to the Project’s anticipated locale, the Supplemental Final EIS summarizes the existing water quality in the area, including Harrods Creek and the Wellhead Protection Area. It also considered the adverse impacts to water quality resulting from the Project, most notably analyzing the effects of potential sources of pollution such as deicing compounds; herbicides and pesticides; oil, grease, and various heavy metals from vehicles; and spillage of toxic chemicals. The analysis concluded that the amount of vehicular pollutants from roadway runoff will be small and cause no material adverse impacts.

Next, the Supplemental Final EIS evaluates potential air quality impacts, describing existing air quality conditions in the Louisville Metropolitan area and the region’s compliance with the National Ambient Air Quality Standards for certain pollutants. The Supplemental Final EIS recognizes potential emissions of greenhouse gases, but acknowledges the inherent limitations in evaluating Project-specific greenhouse gas emissions due to the global nature of these emissions. In the end, it concludes that the emissions likely to result from the Project will conform to the applicable air quality standards.

In the Supplemental Final EIS, Defendants also evaluated the Project’s potential impact on low income and minority populations. Defendants’ analysis relies on 2010 demographic data to identify the affected “environmental justice” populations. It contains a summary of current cross-river travel as illustrated in the Ohio River Bridges User Study, including use of the existing Ohio River bridges by minority and low income individuals. Further, the Supplemental Final EIS evaluates the economic impacts of tolling by analyzing the average cost per trip for travel originating in all Louisville communities.

The Supplemental Final EIS concludes that tolling and other effects of the Project do not disproportionately impact any specific population to a material degree, because all cross-river travelers collectively bear the burden of tolls and the Project would not displace any residents within specific communities. However, the FHA concedes that based on average cost per trip data, the Project is likely to cause a disproportionately high and adverse effect on some low income and minority populations, because the user cost would represent a greater comparative economic burden.

Defendants have considered strategies for mitigating the possible economic effects of tolling on minority populations, including a commitment to develop a tolling policy that is sensitive and responsive to low income and minority populations. For instance, in the final tolling policy, the States have already committed $20 million to the local bus transit system for enhanced bus service, which will abate some of the effect of tolling on minority populations.

In July of 2012, Defendants, in conjunction with the Indiana Finance Authority and the Kentucky Public Transportation Infrastructure Authority, entered into an agreement (the “Toll Agreement”) authorizing the Downtown and East End Crossings as tolled facilities. The Toll Agreement asserts that the Project complies with the FAHA, which permits federal participation in the construction of a new toll bridge that is not part of the Interstate System (here, the East End Crossing) and the reconstruction of an existing non-tolled Interstate bridge converted to a tolled facility (allegedly, the Downtown Crossing).

Ten days later, the FHA approved an update to the 2010 IFP. The 2012 IFP includes detailed estimates of the cost to complete the Project with a summary of costs incurred to date, presents key cost-related assumptions, and breaks down costs by year, state, and type of expenditure. Based on an estimated $2.6 billion cost, the update reflects a financing strategy utilizing conventional state and federal transportation funds and toll-based revenues. It evaluates potential financing risk factors, such as the availability of traditional transportation funds, sufficiency of toll revenues, and access to capital markets for toll revenue bonds. Further, it provides mitigation strategies to manage the risk and discusses the anticipated impacts of the Project on each State’s transportation programs, budgets, and other projects. The IFP will be updated each year.

II.

CART advances twenty claims against Defendants that can be generally grouped into four categories: the Project (1) violates the procedural mandates of NEPA; (2) violates various FAHA funding regulations, including the statute’s prohibition of federal participation in certain tolled facilities; (3) threatens the water and air quality of the region in violation of NEPA, the CWA and the CAA; and (4) intentionally discriminates against racial minorities in violation of Title VI.

Several dispositive motions are before the Court, but of immediate focus is the parties’ cross motions for summary judgment, which will ultimately dispose of all remaining legal claims associated with the Project. The nature of the motion and the nature of the claim dictate the Court’s standard of review. In this section, the Court will summarize the standards for reviewing a governmental agency’s actions and decisions.

The Court reviews claims brought pursuant to NEPA, DTA, CWA, CAA and FAHA under the Administrative Procedure Act (“APA”). 5 U.S.C. §§ 701-06; Audubon Naturalist Soc’y of the Cent. Atl. States, Inc. v. U.S. Dep’t of Transp., 524 F.Supp.2d 642, 660 (D.Md.2007).

Under the APA, an agency action must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). This highly deferential standard asks whether “the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” 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 v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The Court’s inquiry should “ ‘be searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ” Id. (quoting Overton Park, 401 U.S. at 416, 91 S.Ct. 814).

The Court will not substitute its judgment for that of the agency or express a view about the Project. Overton Park, 401 U.S. at 416, 91 S.Ct. 814; Neighbors Organized to Insure a Sound Env’t, Inc. v. McArtor, 878 F.2d 174, 178 (6th Cir.1989); see Marsh, 490 U.S. at 378, 109 S.Ct. 1851 (stating that courts should defer to the agency’s qualified experts “even if, as an original matter, a court might find contrary views more persuasive”). “The Court will instead look to see if an agency has examine[d] the relevant data and articulate[d] a satisfactory explanation for its action and may not supply a reasoned basis for the agency’s action that the agency itself has not given.” MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503, 518 (Fed.C1.2011) (internal quotations omitted). Deference is especially appropriate where the action involves matters within the agency’s area of technical expertise. Marsh, 490 U.S. at 377, 109 S.Ct. 1851; Nat’l Wildlife Fed’n. v. U.S. Envtl. Prot. Agency, 286 F.3d 554, 560 (D.C.Cir.2002). Therefore, as government agencies, if Defendants’ interpretation of its own regulation is reasonable, the Court should defer to it. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994).

Lastly, a court’s review of agency decision making is generally confined to the administrative record before the agency at the time of the decision. Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997). As the Supreme Court emphasized, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp, 411 U.S. at 142, 93 S.Ct. 1241. From time-to-time throughout its briefing, CART references materials outside the record without making any convincing argument why the Court should consider it. In limited circumstances, a court may consider extra-record evidence. See Slater, 120 F.3d at 638 (noting that “in order to justify supplementation, a plaintiff must made a strong showing of bad faith”) (internal quotation omitted). However, in the present case, CART does not convincingly allege that Defendants acted in bad faith to warrant supplementation, so the Court will confine its review to the Administrative Record.

Most, if not all, claims advanced implicate NEPA, which is a procedural statute designed to “ensure! ] that federal agencies will consider significant environmental impacts of federal action, make available the relevant information, and open to public scrutiny their decision making process.” Audubon Naturalist, 524 F.Supp.2d at 660-61. To meet this end, NEPA prescribes the necessary process an agency must follow when it undertakes “major federal action [ ] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). However, “it is ... well settled that NEPA itself does not mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

NEPA does not “require agencies to elevate environmental concerns over other appropriate considerations.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). If the proposed action results in adverse environmental effects that are “adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Robertson, 490 U.S. at 350, 109 S.Ct. 1835. Still, the agency must take a “hard look” at the environmental consequences of its decision to satisfy the requirements of NEPA. Baltimore Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246.

An agency satisfies the hard look requirement when it “obtains opinions from its own experts, obtains opinions from experts outside the agency, gives careful scientific scrutiny and responds to all legitimate concerns that are raised.” Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir.1999) (citing Marsh, 490 U.S. at 378-85, 109 S.Ct. 1851). Though agencies should seriously consider comments elicited from the public and other entities, they need “not necessarily have to defer to them when it disagrees.” Id.

In reviewing agency decision making, the Court must apply a “ ‘rule of reason’ standard, which allows for a deferential review of an agency’s compliance with the NEPA requirements.” Audubon Naturalist, 524 F.Supp.2d at 662; see Save Our Cumberland Mountains v. Kempthome, 453 F.3d 334, 346 (6th Cir.2006). Under this standard, if the agency’s objectives and actions are reasonable, the Court should not disturb the agency’s judgment. In sum, “[t]he role of the courts is simply to ensure that the agency has [complied with NEPA by] adequately considering] and disclosing] the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246.

With this analytical framework in place, the Court will evaluate each of CART’s claims, and when appropriate, give deference to Defendants’ decisions as the law provides.

III.

The Court will first examine CART’s assertions that Defendants violated various NEPA procedural requirements. In all, eight of CART’s claims seem to fit this category. After careful review, the Court finds that none of the claims advanced convincingly challenge Defendants compliance with NEPA.

Claim 1: Mega-Project

In its first claim, CART makes its broadest assertion: that Defendants improperly joined the East End and Downtown Crossings to create a “mega project” in violation of 40 C.F.R. §§ 1502.4(a),-1508.25 and 23 U.S.C. § 109(h). CART argues that the two major bridge projects will affect distinct geographic areas, each having diverse local transportation needs and likely having different environmental, social and economic impacts. As such, CART maintains that the NEPA regulations required Defendants to proceed with each project independently. CART also asserts that as a result of improperly joining the ventures, Defendants did not adequately address reasonable alternatives particular to each location, thus bypassing the NEPA mandate to fully identify, consider and analyze alternatives to the proposed action.

In deciding to pursue an action implicating NEPA, the agency must first determine the scope of proposed actions. 40 C.F.R. § 1508.25. “Scope consists of the range of actions, alternatives, and impacts to be considered in an [EIS].” Id. “Connected Actions” should be addressed in the same EIS if the actions, “when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.” 40 C.F.R. § 1508.25(a)(3); Ocean Mammal Inst. v. Cohen> 1998 WL 2017631, *7 (D.Haw. Mar. 9, 1998) (“For actions to be ‘connected’ under NEPA there must be more than mere relatedness or tangential association.”). NEPA regulations state that Connected Actions “(i) [a]utomatically trigger other actions which may require environmental impact statements; (ii) [cjannot or will not proceed unless other actions are taken previously or simultaneously; and (iii) [a]re interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R § 1508.25(a)(1).

CART contends that the Project does not meet the definitional requirements of Connected Actions because neither bridge project automatically triggered the other and each project has a distinct, localized justification. The Court finds that CART misconstrues NEPA’s definition of Connected Actions and that the decision to incorporate both bridges into a single EIS was reasonable and proper.

The decision of whether to pursue a single EIS or to connect the actions “requires a high level of technical expertise and is properly left 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). The Purpose and Need Statement focuses on the region’s overall need for improved cross-river mobility. This focus inevitably led Defendants to explore new bridge locales in the region, including East Louisville, which presently does not have an easily accessible crossing, and to reconstruct existing Ohio River bridges. Defendants reasonably concluded that the region’s cross-river mobility needs are so interrelated that a comprehensive evaluation of the range of potential actions necessarily included various one-and two-bridge combinations. See Dine Citizens Against Ruining Our Env’t v. Klein, 747 F.Supp.2d 1234, 1254 (D.Colo.2010) (“[E]ven though an action could conceivably occur without the previous or simultaneous occurrence of another action, if it would not occur without such action it is a ‘connected action’ and must be considered within the same NEPA document as the underlying action.”).

In fact, had Defendants divided the Project into smaller component parts, the extent of environmental impacts within each EIS might have seemed less significant, effectively reducing the degree of the overall environmental impacts. See Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1182 (10th Cir.2002) (noting that NEPA’s regulations are designed to prevent separate analyses of two related projects to ensure that “significant cumulative impacts are not to be made to appear insignificant by breaking a project down into smaller components parts”). Thus, by joining the actions in a single EIS, Defendants probably faced a greater probability of not receiving approval. Cf. Cohen, 1998 WL 2017631, at *7 (stating that an agency may improperly opt to “segment” a project by breaking down a larger action into smaller pieces to evade preparation of a more comprehensive EIS).

For these reasons, the Court finds that the East End and Downtown Crossings constitute Connected Actions and that the decision to combine them into a single EIS was proper. Therefore, Defendants are entitled to summary judgment on Claim 1.

Claims 14 & 20: Purpose and Need Statement

In Claims 14 and 20, CART advances challenges to the Purpose and Need Statement. NEPA mandates that every EIS “briefly specify the underlying purpose and need to which [it] is responding in proposing the alternatives included the proposed action.” 40 C.F.R. § 1502.13. The Purpose and Need Statement is critical as it dictates the reasonable range of alternatives the agency will consider. Stop the Pipeline v. White, 233 F.Supp.2d 957, 971 (S.D.Ohio 2002) (“The purpose and need statement simply defines the goals of the project to allow for the review of an appropriate range of alternatives.”). Courts afford agencies considerable discretion in defining the proposed action’s purpose and need, and must evaluate it under a reasonableness standard. Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir.1998).

However, an agency may not define its objectives so narrow as to confine its range of alternatives since doing so would eviscerate NEPA’s mandate to rigorously explore and evaluate all reasonable alternatives. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991). Rather, in defining the action’s purpose and need, the agency must take a hard look at factors relevant to the action’s objective, such as “the needs and goals of the parties involved” and “the views of Congress, expressed, to the extent that- the agency can determine them, in the agency’s statutory authorization to act, as well as in other congressional directives.” Id. After doing so, the agency “must define goals for its action that fall somewhere within the range of reasonable choices.” Id.

Here, Defendants undertook a widespread, rigorous evaluation of the region’s existing transportation infrastructures, travel demands and projected population growth. They sought input from the States, resource agencies and the general public. Throughout the planning and implementation of the Project, the requisite NEPA documents included updated transportation inputs and demographic data, and evidenced a continued need for improved cross-river mobility. Importantly, the Purpose and Need Statement is broadly worded, defining the purpose of the proposed action “as improving cross-river mobility between Jefferson County, Kentucky, and Clark County, Indiana.” Supplemental Final EIS, at 2-6. By expansively casting the purpose of the Project, Defendants’ analyses of reasonable alternatives correspondingly broadened. In fact, Defendants considered non-highway alternatives including travel management measures and mass transit options, and ultimately adopted various transportation management strategies in conjunction with the bridges.

In Claim 14, CART contends that the Purpose and Need Statement is drawn too narrowly and thus not made in the public’s best interest in violation of 23 C.F.R. § 771.105(b) and FHA Order 6640.23. Specifically, CART contends that Defendants failed to include socioeconomic data of the Louisville Metropolitan area’s Title IV populations-that is, minority populations-in defining the Project’s purpose and need, thus limiting the universe of reasonable alternatives. The Administrative Record, however, does not support this contention. The Final EIS and Supplemental Final EIS considered relevant employment and demographic data for the region, including the minority communities, in evaluating the continued need for cross-river mobility. Final EIS, at 5-2-7; Supplemental Final EIS, at 5-6-9. Consequently, the Administrative Record shows that Defendants did take a hard look at socioeconomic data in its development of the Purpose and Need Statement.

Finally, Claim 20 asserts that the Final EIS’s Purpose and Need Statement is deficiently based on outdated social and environmental considerations, and that it failed to take into account public comments. Again, the record rebuts this challenge. In the Supplemental Final EIS, the Defendants reevaluated the Final EIS’s Purpose and Need Statement to ensure that the Project’s objectives remained the same in light of new information. Defendants did not merely re-adopt their previous finding; rather, Defendants conducted a comprehensive reassessment of the Project’s purpose and need to determine whether the previous Purpose and Need Statement remained valid. Additionally, Defendants made available to the public the Supplemental Final EIS’s Purpose and Need Statement before the FHA issued the Revised ROD. Thus, Defendants complied with the procedural mandates of NEPA and allowed for public review and comment.

For all these reasons, the Court concludes that Defendants did not act arbitrarily or capriciously in defining the Project’s Purpose and Need Statement. Accordingly, Claims 14 and 20 are dismissed.

Claims 3 & 9: Reasonable Alternative Analysis

CART brings two claims that specifically question the adequacy of Defendants’ consideration of reasonable alternatives to the Modified Selected Alternative. In Claim 3, CART alleges that Defendants’ decision to implement tolls on the East End and Downtown Crossings for 46 years is not in the public’s best interest in violation of 40 C.F.R. § 1502.14(a) and 23 C.F.R: § 771.105(b). Specifically, CART contends that Defendants did not adequately evaluate the social, economic and environmental impacts, including impacts to Title VI populations, when approving 46 years of tolling, and as such, the decision to do so is deficient. In Claim 9, CART alleges that Defendant violated 40 C.F.R. § 1502.14(a) and 23 U.S.C. § 109(h) by failing to sufficiently explore the option of constructing a non-tolled alternative of an East End Crossing with low cost traffic management.

In its EIS, an agency must discuss reasonable alternatives to the proposed action. 42 U.S.C. § 4332(2)(C)(iii). The alternative analysis demands that an agency give “a balanced consideration” of transportation and safety factors, environmental impacts, and the local, state and national environmental protection goals. 23 C.F.R. § 771.105(b). Agencies must “[rigorously explore and objectively evaluate all reasonable alternatives, and for the alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a).

In drafting its EIS, an agency “must make the initial determination [of] which alternatives are feasible and merit consideration.” Com. of Ky. ex rel. Beshear v. Alexander, 655 F.2d 714, 718 (6th Cir.1981); see Meister v. U.S. Dep’t of Agrie., 623 F.3d 363, 377 (6th Cir.2010) (noting that the range of alternatives an agency must address is within its discretion). Thus, the agency “need not consider all of the possible alternative actions in the- EIS; it is only required to look at those that are reasonable in light of the project’s stated purpose.” Alliance for Legal Action v. F.A.A., 69 FedAppx. 617, 622 (4th Cir.2003); see Dalton, 989 F.Supp. at 1326 (noting that when “alternatives are [identified and] evaluated in reasonable depth, an agency is free to make any non-arbitrary choice among them”).

Again, the action’s Purpose and Need Statement informs the range of alternatives an agency must consider. See Audubon Naturalist, 524 F.Supp.2d at 667 (stating that courts are to “evaluate the agency’s choices of reasonable alternatives in light of the objectives and goals of the federal action”) (internal quotation omitted). Thus, given the purpose of the proposed action, courts must determine whether the agency identified a reasonable range of alternatives, and whether the agency aptly explored each. Id. As previously stated, a court’s review is limited and entitled to some deference. See id. (“[T]he Court’s review is not of the agency’s substantive judgment, but of the sufficiency of the agency’s consideration of the reasonable alternatives.”).

Given the Project’s Purpose and Need Statement, the Court holds that Defendants considered an adequate number of reasonable alternatives and investigated them to the extent necessary in accordance with NEPA. In two distinct NEPA reviews, Defendants identified five alternatives and measured their relative ability to satisfy the Project’s purpose and need. These alternatives encompassed a wide array of potential transportation-related measures including building a new crossing, reconstructing existing infrastructures, implementing alternative transit options and alleviating traffic congestion with various benefit programs. Eventually Defendants properly narrowed the range of alternatives for further analysis. See id. at 668 (“Agencies may properly eliminate from further study those alternatives that do not meet its reasonable objectives.”). The Bridge/Highway Alternatives consisted of a permutation of one-and two-bridge solutions, as well as various methods of financing.

With respect to Claim 3, in its evaluation of alternatives, Defendants took a hard look at the likely impacts of tolling, including the impact of the tolling period on low income and minority populations. Defendants are not required to select the most benign alternative, but must take a hard look at environmental, social and economic impacts in its consideration of alternatives. The Court is satisfied Defendants met this burden.

Concerning Claim 9, the Administrative Record includes a discussion of a Downtown Crossing-only alternative and an East End Crossing-only alternative. Defendants declined to pursue a single-bridge alternative because it would not achieve the Project’s long-term objective to improve overall cross-river mobility. Specifically, in the Alternatives Evaluation Report, Defendants found that a non-tolled, single-bridge alternative would not meet the Project’s purpose and need, and therefore, a further in-depth analysis of that alternative was unnecessary. In that decision, and in overall reasonable alternative analysis, Defendants adequately considered the impacts to Title IV populations. While CART is entitled to disagree with Defendants’ decision to adopt the Modified Selected Alternative, NEPA does not control the agency’s choice among alternatives. Rather, it only requires that the agency consider and disclose to the public reasonable alternatives and their evaluation thereof. Given the deferential standard of review the Court must apply, the Court finds that Defendants gave due evaluation to a reasonable range of alternatives. As a result, the Court must dismiss Claims 3 and 9.

Claim 7: Pre-selection of the East End Crossing

In Claim 7, CART argues that Defendants violated 40 C.F.R. §§ 1500.1(b) and 1507.1 when they allegedly “pre-selected” the route for the East End Crossing before disclosing its environmental impact. CART alleges that Defendants contracted with the Soterion Corporation to select the particular East End Crossing location. As a result, according to CART, Soterion Corporation purchased land in the area in February 2000 for $2.9 million and years later sold it to Kentucky for a $5.4 million profit.

To the extent that CART’s claim alleges fraud or bad faith, the Court dismisses that contention outright. CART’s allegations to this end are vague and unsubstantiated. NEPA documents refute this accusation by evidencing a very thorough and collaborative process of weighing alternatives and making a reasoned choice. The selection of the East End Crossing location resulted from a lengthy and rigorous deliberation process. Persistent speculation of a new bridge in East Louisville likely suggested the possibility that Kentucky might someday seek to purchase the property for the Project. However, CART fails to advance any allegations from which the Court could infer that the specific bridge location was pre-selected. The Court finds that Defendants engaged in a well-reasoned selection process and fulfilled its obligations under NEPA in that respect. Thus, Claim 7 is dismissed.

Claim 8: Anticipated Tunnel Spoilage

In Claim 8, CART contends that the Supplemental Final EIS is defective because it fails to adequately address the placement and disposal of an estimated 350,000 tons of material excavated from the tunnel leading to the Kentucky entrance of the East End Crossing. CART maintains that this issue is “significant” for purposes of NEPA, see 40 C.F.R. § 1508.27, and Defendants’ failure to rigorously review and disclose the environmental impact of tunnel spoil violates 40 C.F.R. § 1500.1(b).

The Revised ROD discusses the issue of excavated tunnel spoil and states that “[a]ll excavated materials not utilized for roadway embankment or disposed of off-site will be hauled for storage to an upland site and secured in such a manner as to prevent runoff from entering streams.” Revised ROD, at 46. Further, Defendants conceded that “[b]orrow sites and excess material sites for disposal of construction spoil have not been determined at this time. Excess material and borrow sites will be investigated later when a determination is made on how construction phasing will progress.” Id. CART argues that such a concession violates the NEPA requirement for concurrent review of environmental impacts in NEPA disclosures. See 40 C.F.R. § 1500.1(b) (“NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.”).

Nothing in the Administrative Record suggests that Defendants discounted the impacts of tunnel spoil. Rather, Defendants acknowledged the environmental impact of tunnel spoilage and have proffered several ideas to properly manage excess. That Defendants have not precisely determined a site for disposal of excess construction spoil does not invalidate their analysis. The sites will be investigated further when contractors decide on the schedule of construction; presently, Defendants have committed to coordinate with U.S. Fish and Wildlife Service when sites are identified, and have required contractors to develop plans detailing methods to transport and partition the excavated materials. Lastly, contractors are charged with creating restoration plans for excess material not used in the Project.

The Court finds that Defendants have addressed the issue of tunnel spoilage to the most practical degree at this stage in the Project. The Administrative Record evidences that Defendants took the required hard look at the issue of spoilage excavation and have made arrangements that seem reasonable at this point. Accordingly, Claim 8 is dismissed.

Claim 17: Second Supplemental EIS

Finally, in Claim 17, CART contends that Defendants violated NEPA when they failed to prepare a second supplemental EIS after the Project’s construction cost projection allegedly dropped from $4.1 billion to $1.6 billion. In December 2012, the bridge contractors reduced the cost projections for the construction of both bridges. As best the Court can conceive, CART argues that the reduction in cost projections, and thus the reduced apparent need for tolls as a revenue source, should alter the balance previously struck supporting the propriety of tolls when compared to the anticipated, yet undetermined, disparate impact the tolls might have on environmental justice populations, defined here as minority and low income populations. By failing to conduct a revised EIS pursuant to the new cost projections, CART contends that Defendants violated 40 C.F.R. § 1502.9(c)(l)(i)-(ii) and 5 U.S.C. § 706(2)(A).

Once an EIS is finalized, “an agency need not supplement [it] every time new information comes to light.” Marsh, 490 U.S. at 373, 109 S.Ct. 1851. However, the agency must supplement when it “makes substantial changes in the proposed action that are relevant to environmental concerns[,]” 40 C.F.R. § 1502.9(e)(l)(i), or where “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(h). The decision of whether to prepare a supplemental EIS

turns on the value of the information to the still pending decisionmaking process. In this respect the decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains “major Federal actio[n]” to occur, and if the new information is sufficient to show that the remaining action will “affec[t] the quality of the human environment” in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.

Marsh, 490 U.S. at 374, 109 S.Ct. 1851 (quoting 42 U.S.C. § 4332(2)(C)). An agency’s determination of whether the information is significant enough to require supplementation is “a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” Id. at 376, 109 S.Ct. 1851. An agency’s analysis of new information “requires a high level of technical expertise,” and as such, courts “must defer to ‘the informed discretion of the responsible federal agencies.’ ” Id. at 377, 109 S.Ct. 1851 (quoting Kleppe, 427 U.S. at 412, 96 S.Ct. 2718)).

CART alleges that a press release announcing the selection of bridge contractors stated that the overall cost of the Project was $1.6 billion. This is not a fair statement. The $1.6 billion figure represents the cost projections of the two primary construction contracts for the East End and Downtown Crossings; the figure does not represent the entire cost of the Project. Many other costs are involved such that the actual estimated total cost is $2.6 billion. Prior to the bids, the 2012 IFP estimated that the two primary construction contracts as costing $1.9 billion. Thus, the contractor bids will result in savings of $300 million, not the more than $2 billion that CART alleges. Therefore, the change in cost is not significant.

The maximum funding available from traditional federal and state sources remains $1.9 billion. Since the Project’s estimated total cost is $2.6 billion, there remains a significant need for toll-based revenue to fund the Project. The Court is satisfied that the financial data and reasoning in the Supplemental Final EIS and Revised ROD remain valid. Defendants have made a reasonable judgment that the $300 million reduction does not reduce the total Project’s cost sufficiently enough to demand that Defendants reconsider the need for tolling.

For these reasons, the Court finds that the Defendants’ decision not to prepare a second supplemental EIS was not arbitrary or capricious, and as such, Claim 17 must be dismissed.

IV.

The next group of claims broadly attack Defendants’ financial planning and funding selection for the Project. Once again, the Court concludes that Defendants have considered numerous funding alternatives and have made reasonable decisions concerning financing for the Project.

Claim 2: Tolling on the Downtown Crossing

Claim 2 concerns the Toll Agreement, which approved federal financial assistance for the Project. Generally, FAHA prohibits the implementation of tolls on highways constructed with federal aid or assistance. 23 U.S.C. § 301. However, the Secretary of Transportation may authorize toll projects involving 1) the initial construction of non-interstate toll highways, bridges and tunnels, and 2) the reconstruction or replacement of existing free interstate and non-interstate bridges and tunnels. See 23 U.S.C. § 129(a). The Toll Agreement designates the East End Crossing and Downtown Crossing as toll facilities pursuant to 23 U.S.C. § 129. In Claim 2, CART argues that tolling cannot be authorized on the Downtown Crossing because it does not meet one of the exceptions to 23 U.S.C. § 301 provided for in 23 U.S.C. § 129(a).

The Downtown Crossing has two dependent bridge components: the Kennedy Bridge, which will be reconstructed and reconfigured to carry only 1-65 southbound traffic, and a new parallel 1-65 crossing, which will be constructed to carry only 1-65 northbound traffic. Together, the bridges comprise parallel crossings for all cross-river 1-65 traffic. In the Court’s view, this part of the Project merely alters and expands an existing, open traffic pattern. It does not create a new traffic pattern previously unavailable.

Under FAHA, federal assistance may be provided for the “reconstruction or replacement of a toll-free bridge or tunnel and conversion of the bridge or tunnel to a toll facility.” 23 U.S.C. § 129(a)(1)(E). The Toll Agreement is based upon a sound and reasonable conclusion: the parallel I-65 crossing is not an initial construction of an interstate bridge, but rather a component in the reconstruction of the existing 1-65 crossing. See Toll Agreement, at 2. The Downtown Crossing is a comprehensive, reconstruction project of the existing 1-65 crossing, and thus eligible for conversion to a toll facility under 23 U.S.C. § 129(a)(1)(E). As a result, Claim 2 must fail.

Claim 5: Approval of the Financial Plan

Next, CART alleges that the use of tolls to finance the Project violates the fiscal constraint requirement imposed under 23 U.S.C. § 134(j)(3)(D) and 23 U.S.C. § 135(g)(5)(E). Both provisions demand, as a condition of federal participation in a proposed transportation project, that “full funding can reasonably be anticipated to be available for the project within the time period contemplated for completion of the project.” Because the Project has a 2018 anticipated completion date, CART argues that the 46-year-toll period indicates full funding is unavailable.

The Court finds no common sense or legal support for such an argument. The Project’s mixed funding, ranging from federal financing to debt financing, is common for such complex construction projects. Since part of the Project’s funding is debt financing, a future obligation is created that is outside the Project completion schedule. Toll revenue, among other purposes, helps to ensure that future debt payment obligations can be met. Simply because present day funding is subject to amortization is no basis to conclude that full funding is unavailable for the Project. The Court finds that Defendants have presented an adequate plan to fully fund the Project. As a result, Claim 5 cannot go forward.

Claims 4 & 6: Failure to Include Detailed Cost Estimates of the Project

Claims 4 and 6 allege that Defendants’ financial disclosures lack transparency and detailed explanations in violation of FAHA. Pursuant to 23 U.S.C. § 106(h), recipients of federal assistance for “major projects” must prepare and submit two financial plans, a project management plan (here, the Tolling Agreement) and a financial plan (here, the IFP). The IFP must be based on “detailed estimates of the cost to complete the project.” 23 U.S.C. § 106(h)(3)(A).

The 2012 IFP memorializes Defendants’ financial plan, providing a detailed Project cost estimate and an explanation of its methodology consistent with the Project’s construction schedule. Further, the IFP provides an in-depth overview of the Project’s available and committed funding, as well as projected toll-based revenues. Lastly, it discusses risks associated with the Project’s costs, scheduling and funding, and supplies a summary of potential mitigation strategies to address each.

In Claim 4, CART argues that the IFP’s cost-to-complete estimates improperly rely upon speculative toll revenues and governmental appropriations. The substance of the IFP, however, refutes this charge. An entire section is devoted to risk identification, including future availability of state and federal funding and toll-based revenue. It squarely addresses risks that may affect the ability to finance the Project, including the operation and maintenance of the Project over time. For each identified risk, the IFP provides a corresponding mitigation plan to address the particular contingency should it arise. Though CART may not agree with these plans or believe them to be adequate, Defendants easily met the applicable FAHA requirements.

In Claim 6, CART alleges that Defendants failed to explain $214 million in oversight costs. Once again, the IFP defeats this assertion. It details the allocation of oversight and design costs provided for during Project construction, including the hiring and support of experts. Given the Project’s size, the need for oversight is obvious, at the very least to promote public confidence in its integrity. Taken as a whole, the IFP provides an exhaustive account of the Project’s financial considerations. The Court finds no reasoned or legal basis for questioning the oversight costs.

While CART is entitled to believe the IFP lacks sufficient detail to satisfy 23 U.S.C. § 106(h)(3)(A), the Court does not reach the same conclusion. Defendants’ analysis is neither arbitrary nor capricious. The Court finds the IFP to be sufficiently detailed, and in compliance with 23 U.S.C. § 106(h)(3)(A). Consequently, the Court must dismiss Claims 4 and 6.

CART’s next group of claims assert broad allegations that Defendants failed to comply with various water, air, and other environmental quality standards. For the reasons that follow, the Court concludes that Defendants have adequately considered and addressed all required environmental concerns in its development of the Project.

Claims 10 & 11: Clean Water Act

In 1972, Congress amended the Federal Water Pollution Control Act with the CWA to provide the structure for regulating pollutants from point sources that may contaminate bodies of water within the United States. In furtherance of that goal, the CWA permits individuals to bring lawsuits to enforce the Act against the government pursuant to its citizen suit provision, 33 U.S.C. § 1365. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Necessarily, a major infrastructure project such as this one implicates CWA regulations. Claims 10 and 11 allege direct and indirect violations of the CWA.

As a preliminary matter, the Federal Defendants argue that § 1365 of the CWA allows only a limited waiver of sovereign immunity to bring citizen suits against the government. They maintain that that CART failed to adhere to the jurisdictional prerequisites necessary to bring CWA claims imposed in § 1365. The Court agrees.

First, the CWA allows for citizen suits for alleged violations of “(A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation.” 33 U.S.C. § 1365(a)(1). Therefore, the CWA authorizes citizens to seek civil penalties “only in a suit brought to enjoin or otherwise abate an ongoing violation.” Atl. States Legal Found., Inc. v. United Musical Instruments, U.S.A., Inc., 61 F.3d 473, 476 (6th Cir.1995) (quoting Gwaltney, 484 U.S. at 59, 108 S.Ct. 376). However, CART alleges no ongoing violation in its complaint; at the time CART filed its complaint, construction of the Project had not yet commenced and no agency had issued water quality permits for the Project. The allegations of excessive pollution were purely speculative. Accordingly, CART’s claims under the CWA are not actionable at this time.

Second, the CWA requires a citizen to provide notice of the alleged violation to the Environmental Protection Agency (“EPA”), the state in which the alleged violation occurs, and any alleged violator, sixty days prior to filing a complaint. 33 U.S.C. § 1365(b). This is not a mere technicality. The purpose of the notice requirement “is to give [the alleged violator] an opportunity to bring itself into complete compliance with the Act and thus ... render unnecessary a citizen suit.” Friends of the Earth, Inc. v. Laidl