Full opinion text
FONG, Chief Judge. ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND GRANTING FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION. This is an action by certain Waianae Coast residents and various organizations composed of Waianae residents for declaratory and injunctive relief, seeking in the main to stop the construction of the deep draft harbor at Barbers Point. The defendants include the Secretary of the Army, the District Engineer for the Honolulu U.S. Army Engineer District and the State Departments of Transportation, Land and Natural Resources, and Planning and Economic Development. The plaintiffs allege various violations of the Water Resources Development Act of 1974, at 42 U.S.C. § 1962d-17 (WRDA), the National Environmental Policy Act of 1970, 42 U.S.C. § 4331 et seq. (NEPA), the Historic Sites Act of 1935 (HSA), the National Historic Preservation Act of 1966 (HSPA), the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (ESA), certain Corps regulations relating to the failure to monitor cultural resources, 40 C.F.R. 1505.2 and 33 C.F.R. 230.13, and the Coastal Zone Management Act (CZMA). On December 29, 1982, this court imposed a temporary restraining order enjoining all blasting operations. Plaintiffs’ Motion for Preliminary Injunction came before the court for hearing on February 3-5, 1983. The court took the motion under advisement, pending the submission of proposed findings of fact and conclusions of law. Following the hearing, however, this court found that in light of the evidence presented, there no longer existed a basis for continuation of the temporary restraining order and ordered it dissolved. The Ninth Circuit refused to overturn that decision. Before this court is a Motion for Preliminary Injunction filed by plaintiffs, seeking to enjoin further construction of the Barbers Point Deep Draft Harbor on the island of Oahu. Plaintiffs’ motion is based upon the Water Resources Development Act, the National Environmental Policy Act, and the Endangered Species Act. Plaintiffs have also moved for partial summary judgment on those claims, and seek a permanent injunction based upon these claims. The federal defendants have filed a Cross Motion for Summary Judgment on all claims. Also pending are plaintiffs’ Motion to Supplement Record, filed August 10, 1983, which is opposed by the state defendants; the state defendants’ Motion to Strike the Plaintiffs’ late-filed Supplemental Memorandum in Opposition to Defendants Motion for Summary Judgment; and plaintiffs’ Motion for Reconsideration of Order Denying Admission of Evidence. II. FACTS. The Barbers Point Deep Draft Harbor Project was authorized by Congress under Section 301 of the Rivers and Harbors Act of 1965. The harbor site is on the southwest (“Leeward”) coast of the island of Oahu, in the Ewa District and adjacent to the Waianae District. When completed, it will provide a second deep draft harbor on Oahu for commercial and industrial use. The principal features of the project will be an entrance channel 4280 feet long, 450 feet wide and 38-42 feet deep, and a 92-acre inner harbor. The project is expected to take about two years for its completion. The project, as authorized, is the joint responsibility of the United States Army Corps of Engineers and the State of Hawaii, through its Department of Transportation. The Corps is responsible for the construction of the entrance channel and harbor basin. The State of Hawaii will provide, inter alia, all lands, easements, rights of way, a portion of the project’s costs, and shoreside terminal and transfer facilities. In 1975, prior to the start of construction, the Corps initiated environmental studies pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., (NEPA). On April 30, 1976 the Corps prepared and circulated a draft Environmental Impact Statement (EIS) for the project. The final EIS was filed on December 27, 1976 and the January 1977 Supplement to the final EIS was filed on February 27, 1977. The Corps awarded the construction contract to Peter Kiewit Sons Company in March, 1982, pursuant to a court order, and construction commenced in August of that year. III. NATIONAL ENVIRONMENTAL POLICY ACT. A. Test for Preliminary Injunction. In environmental cases, the “preferred” test for granting a preliminary injunction is a tripartite one: (1) whether the movants have established a strong likelihood of success on the merits, (2) whether the balance of irreparable harm favors the movants, and (3) whether the public interest favors granting the injunction. National Wildlife Federation v. Adams, 629 F.2d 587, 590 (9th Cir.1980); Sierra Club v. Hathaway, 579 F.2d 1162, 1167 (9th Cir. 1978); Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir. 1977). As to the second element, the court in Friends of the Earth v. Coleman, 518 F.2d 323 at 330 (9th Cir.1975), has stated in dicta that “irreparable damage may in the context of an action to enforce NEPA be implied from the failure by responsible authorities to evaluate fully the environmental impact of the proposed project, and consider alternative proposals before engaging in a project which constitutes major federal action,” although such considerations are not controlling where the movants show little likelihood of prevailing on the merits. In Cady v. Morton, 527 F.2d 786 (9th Cir.1975), the court stated: Although failure to comply with NEPA will ordinarily call for an injunction halting the challenged action until the Act’s requirements are met, in unusual circumstances an application of traditional equitable principles may justify denial or limitation of injunctive relief.” Id. at 798 n. 12. The Ninth Circuit has recognized that the second and third elements of the tripártate test: merge into a single equitable judgment in which the environmental concerns of the movants must be weighed against the societal interests which will be adversely affected by granting the relief requested, a process which must be significantly affected by the realities of the situation. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir.1977). See also National Wildlife Federation, 629 F.2d at 590 (affirming the trial court’s denial of preliminary injunction on the grounds that appellants had not demonstrated a strong likelihood of success on the merits and that the public interest would suffer far more serious harm if injunctive relief were granted than would the movants if it were not). In sum, the test for determining whether to grant or deny a preliminary injunction in this case is (1) whether the plaintiffs can demonstrate a strong likelihood of success on the merits and (2) whether the harm to plaintiffs’ environmental interests in denying the injunction outweighs the harm to the public interest in granting the injunction. In determining whether to issue a preliminary injunction in a NEPA case, an important consideration is the analysis presented in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). In that case, the issue before the court was a violation of the Federal Water Pollution Control Act. The court found that, although there was a violation of the permit requirements of the Act, an injunction would not automatically issue because there were other provisions to insure compliance, such as fines and criminal penalties. The court stated that not every violation of a statute would require an injunction, and that the basis for injunction always has been irreparable injury and the inadequacy of legal remedies. A court must therefore generally continue to balance the conveniences to the parties and the possible injuries to them in determining whether to grant injunctive relief. The court did note that in TV A v. Hill, an ESA case, the purposes of the ESA limited the remedies available to the court. Since the ESA contemplated only a ban on destruction of endangered species or their critical habitat, the only relief possible under this act was an injunction. The ESA was contrasted with the Federal Water Pollution Control Act, which did provide other remedies which would equally well serve the purposes of the Act. There are two ways of looking at NEPA in light of Romero-Barcelo. One way is that, like the ESA, NEPA has a single purpose—a purely procedural one. As a procedural statute, there is no way to comply with a violation of NEPA other than to require the agency to follow the specified procedures. When there is a violation of NEPA, therefore, the presumptive remedy is to enjoin the activity of the agency until the procedural requirements are followed. This court, however, finds that the proper view of NEPA is that there are both procedural and substantive goals of the Act. The substantive goal would be to insure that the decision makers can make an informed choice. Thus, although there may be a technical violation of procedural requirements, an injunction will not necessarily issue if the decision maker is otherwise fully informed as to the environmental consequences of the the proposed action. This view is consistent with Cady and Friends of the Earth, supra, and with the holding of Warm Springs v. Gribble, 621 F.2d 1017 (9th Cir.1980) (failure to give a copy of the draft EIS for comment held not “prejudicial” because there was no indication that the omitted agency would have given the decision maker any useful comment, and because any potential concern of that agency was subsequently considered). See also, Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). With the above discussion in mind, we turn to the merits of the plaintiffs’ claims. The plaintiffs’ claims rest on two principal assertions: (1) the 1976 EIS and 1977 Supplement did not adequately consider certain significant environmental effects of the project and (2) defendants failed to file a supplemental EIS on the basis of significant new information which arose after the 1976 EIS and 1977 Supplement. B. The Original EIS. NEPA requires federal agencies to prepare and file an environmental impact statement (EIS) for “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). The EIS is intended to serve two purposes: First, it should provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences. Secondly, the impact statement should provide the public with information on the environmental impact of a proposed project as well as encourage public participation in the development of that information. Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir.1974). The appropriate standard for review of the adequacy of an EIS is well established in the Ninth Circuit as that set forth in § 706(2)(D) of the Administrative Procedure Act: whether the EIS was prepared “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D) (1976); Adler v. Lewis, 675 F.2d 1085, 1096 (9th Cir.1982): The determination of adequacy is essentially pragmatic. Whether an EIS will be found in compliance with NEPA involves an evaluation of whether the discussion of environmental impacts ‘reasonably sets forth sufficient information to enable the decision-maker to consider the environmental factors and make a reasoned decision.’ ... Preparing an EIS requires the exercise of judgment; however, a court in its review may not substitute its judgment, but instead is limited to ensuring that the agency has considered the environmental consequences of its action. (Emphasis in original; citations omitted.) Id. at 1096. In short, the only role for this court in reviewing an EIS is to insure that the Corps has taken a “hard look” at the environmental consequences. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976). However, an EIS need not discuss remote and highly speculative consequences. A reasonably thorough discussion of the significant aspects of the probable environmental consequences is all that is required. Trout Unlimited at 1283. In addition, the sufficiency of an EIS is judged on a pragmatic basis: Judicial enforcement of NEPA includes strict compliance with the disclosure and procedural provisions of the Act. Nevertheless, the test of EIS adequacy is pragmatic and the document will be examined to see if there has been a good faith attempt to identify and to discuss all forseeable environmental consequences. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir.1977). Plaintiffs allege two deficiencies in the original EIS: (1) the discussion of secondary effects, and (2), the discussion of the state shoreside facilities. (1) Secondary Effects. Plaintiffs claim that defendants failed adequately to assess significant secondary effects of the project, i.e., the effects of changes in population patterns and increased urbanization on the applicable resource base of the Waianae coast, including land use, water, and public services, as required by 33 C.F.R. 209.410(i) (1975) and 40 C.F.R. 1500.-8(a)(3)(h) (1975). Plaintiffs in essence allege that defendants’ treatment of significant secondary effects of the project is not adequate under the aforementioned regulations. The state defendants contend that the regulations cited by plaintiffs merely require that a discussion of significant secondary effects be “included” in the EIS and that a formal study is not required. However, even if a formal study is not required, the regulations require more than mere inclusion. 40 C.F.R. § 1500.8(a)(3)(h) (1975) states: secondary or indirect, as well as primary or direct, consequences for the environment should be included in the analysis. Many major Federal actions, particularly those that involve the construction or licensing of infrastructure investments (e.g. highways, airports, sewer systems, water resource projects, etc.), stimulate or induce secondary effects in the form of associated investments and changed patterns of social and economic activities ____ For example, the effects of the proposed action on population and growth may be among the more significant secondary effects. Such population and growth impacts should be estimated if expected to be significant ... and an assesment made of the effect of any possible change in population patterns or growth upon the resource base, including land use, water, and public services of the area in question. The data to be used in assessing the effect of secondary effects are specified in subsection (a)(1): In discussing these population aspects, agencies should give consideration to using the rates of growth in the region of the project contained in in the projection compiled for the Water Resources Council by the Bureau of Economic Analysis of the Department of Commerce and the Economic Research Service of the Department of Agriculture (the “OBERS” projection). In any event it is essential that the sources of data used to identify, quantify or evaluate any and all environmental consequences be expressly noted. Under 33 C.F.R. § 209.410® (1975), “the environmental statement is to fully discuss the primary and secondary environmental effects including the social and economic impacts.” (emphasis ádded). Indeed, as the court in Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir. 1980) stated, “analysis” of secondary effects is required. The state defendants attempt to distinguish Bowers on the facts, contending that the harbor is not being built in the same area that plaintiffs allege the socio-economic impacts will occur. They state that the harbor is being built at Barbers Point, not in Waianae or Nanakuli. This contention is meritless, as the EIS specifically refers to impacts on “Leeward Oahu”. See e.g., EIS §§ 4-7, 4-8, 4-9. State defendants alternatively urge the court to apply Citizens Committee Against Interstate Rte. 675 v. Lewis, 542 F.Supp. 496 (S.D.Ohio 1982). In that case, the court held that an EIS did not need to include a discussion of the economic impacts of a proposed highway upon the adjacent city, where plaintiffs did not allege a primary environmental impact and their claims related only to economic effects. Id. at 536-37. The court noted that, unlike the case before it, cases which held that urban impacts were required to be considered “did not discuss NEPA’s applicability to situations involving economic impacts only.” Id. at 536. Lewis is not applicable on the issue of secondary impacts in the instant case since, in contrast to Lewis, plaintiffs here have alleged significant environmental effects, as well as socio-economic impacts. Defendants contend that the final EIS adequately considered the significant environmental consequences of the project, including secondary effects, to the extent of the available information. Included in the EIS is a discussion of the relationship of the proposed harbor development to existing land use plans of the State of Hawaii, the City and County of Honolulu, the Campbell Estate, and the military. EIS § 3. The discussion makes it very clear that the only land areas available for large scale industrial expansion are in leeward Oahu, that the majority of the land on Oahu planned for industrial use is in the leeward area. As to the secondary impacts on development in the area, the EIS states: 4.30 ... [T]he growth inducing effects of harbor implementation may be significant. The presence of a commercial deep draft harbor will probably hasten the industrial development of the adjacent lands and possibly the urbanization of Leeward Oahu. 4.31 The harbor is primarily intended to serve existing industries, such as the building products industry, which generate or receive commerce in the Ewa-Leeward Oahu area. Growth of leeward industrial activity is not dependent on the harbor for implementation. Relocation and expansion of existing Oahu industries toward the area is expected with or without the harbor, but the development of new industries around the harbor is not expected because basic industries in Hawaii are population- or service-oriented, rather than export-oriented. Growth in the area should then be commensurate with and complemetary to this population, service-oriented base. 4.32 Growth can be viewed as adverse or beneficial and much of the evaluation will depend on the State and local controls exercised on the development of these lands. The harbor construction will permanently commit the immediate area to major deep draft harbor industrial use and development. On a broader level, it may reinforce the directed growth toward Leeward Oahu, strengthening the case for urbanization on lands which are currently undeveloped or in agricultural use. While the harbor itself will affect only limited acreages of cane lands, the long-range secondary effects on the transition from agriculture to urban uses may be far reaching and will be largely a responsibility of the State and County agencies in exercising the policies and regulations relating to land use. Id., §§ 4-7, 4-8. The EIS also states: The proposed harbor development is in consonance with the adopted General Plan of the City and County of Hawaii. A secondary consideration which may be reinforced or hastened is the increased urbanization of leeward Oahu. Urbanization would be subject to the policy direction and controls of both State and local government. Id., § 8-1. In response to a specific concern expressed by the Office of Environmental Control of the State of Hawaii regarding the secondary impacts and growth stimulation of the proposed harbor, the EIS stated: The discussion of secondary impacts has been expanded to the extent possible at this time. Growth in the Ewa area is already underway____ The harbor is not expected to attract new growth or industry related to harbor activity, but rather to hasten the growth which is expected to take place in the Leeward area, with or without a second port. Industry in Hawaii is population-oriented, rather than export-oriented, and is expected to grow with the population to meet its need. The hastening of growth undoubtedly carries significant impacts as well, and identification of major areas of impact such as the need for water supply, sewage facilities, roadway improvements, and the resulting increase in activity in the area will be made as detailed as possible. However, a full evaluation of impacts cannot be made until the State of Hawaii completes acquisition and plans for shoreside facilities____ [A] supplement to the final environmental statement will be prepared and circulated during the detailed design phase. The secondary impacts will be discussed to the extent that the plans of the State are available at that time. Thorough coordination by the State of Hawaii of the shoreside planning with the public and with agencies will assist in the reporting of impacts in the Federal statement or in a State impact statement. Id., § 9-13. Again, in response to a concern that the secondary effects of the project were not being considered, the Corps stated: The details of specific harbor shoreside development plans were not included as they recognized that the shoreside facilities will have a considerable impact on the project area, and for this reason, a supplement to the final environmental statement will be prepared and coordinated later. It should be noted, however, that this DES has been specifically prepared to meet the Federal requirements for a major Federal action significantly affecting the quality of the environment; in this case, construction of a deep draft harbor. It is not intended to meet specific State requirements nor is it intended to be under Federal guidelines, the decision-making document for the harbor project or for the urbanization of Leeward Oahu. The decision-making document for this Federal project is the project report, the General Design Memorandum, Phase I. (emphasis supplied). Id., § 9-18. This court therefore concludes that there has been a sufficient discussion of the secondary effects of the harbor project. In this regard, the instant case is distinguishable from Bowers, supra. In Bowers, plaintiffs challenged the adequacy of an EIS for a proposed highway project with respect to, inter alia, secondary impacts such as growth, land-use development and social and economic activities. The court there found that the EIS failed to address secondary effects, since the discussion of land use was limited only to the following: This project should not have a significant effect on adjacent land use since the amount of the new Right-of-Way being taken is quite small and the existing access patterns will be left about the same as they are now. Although several businesses and homes ... will have to be relocated, it is expected that they will try to relocate as near to the new highway as possible. Since this project will provide a new 4-lane facility, the possibility does exist that development along the highway may increase at a faster rate than it has in the past, (emphasis added) Id. at 782. In addition to other grounds, the court in Bowers found the EIS to be deficient on the issue of secondary impacts. The court reversed and remanded the case to the district court with instructions to enjoin construction until defendants could demonstrate full compliance with NEPA. Bowers is distinguishable from the instant case, because the defendants in that case had virtually ignored secondary impacts in the EIS. In the instant case, the final EIS contains repeated discussion of the potential secondary impacts of the project development, sufficient to place the decision makers on notice of such effects of the harbor project. Of course, the discussion of possible effects on leeward Oahu were necessarily speculative and could only be discussed in relatively general terms, since the construction of the harbor itself would have very little secondary impact on the leeward Oahu area. A more detailed discussion of such impacts would have to await the state’s plans for the shoreside facilities, and the various zoning changes in the area. The case of Concerned Citizens v. Sec. of Transportation, 641 F.2d 1 (1st Cir. 1981) is controlling here. In Concerned Citizens, appellants challenged the adequacy of the EIS’ discussion of the impact of secondary development from a highway project. The EIS stated: [T]he significance of [secondary development] will depend on its amount, quality, and the ability of the community or region to channel such growth positively in accord with its goals. [S]uch growth and development can be most beneficial when accompanied by good land in control [sic]. Positive or beneficial effects would include new desirable growth that would be induced by the proposed expressway. 641 F.2d at 5. Said the court: [W]e appreciate appellants’ concerns ... that the EIS underplays the possibility of adverse effects of secondary development____ But in this case we agree with the district court that ‘the highly speculative nature of the [projected] growth’ and ‘the existence of continuing opportunities to limit its adverse effects’ renders the disclosure in this case at least minimally acceptable. Id. at 6. The court ultimately affirmed the district court’s denial of a preliminary injunction. Also relevant is Concerned Citizens v. Goldschmidt, 533 F.Supp. 1222 (D.New Jersey 1982): where the alleged impact of future development is speculative at the time of the FEIS, a failure exhaustively to examine future trends does not render the FEIS inadequate____ Moreover, as recognized by the court in Concerned Citizens, secondary development is controllable by local authorities through land use controls, (citations omitted) 538 F.Supp. at 1231. In the instant case, the EIS makes it clear that the potential effects of the harbor project itself was relatively small, but could be significant when viewed in conjunction with the state’s shoreside facilities. Much of the growth potential, however, would be dependent upon the controls placed by the state and local governments. With so much contingent upon as yet unknown factors, it is problematical as to how much further any analysis could be meaningfully taken. See, Cummington Preservation Comm. v. Federal Aviation Adm., 524 F.2d 241, 244 (1st Cir.1975), (cited with approval in Concerned Citizens, supra, 641 F.2d at 5). Thus, the highly speculative nature of the potential effects and ability of state and local authorities to limit (e.g. through zoning classifications) such effects should, as in the Concerned Citizens case, render the EIS at least “minimally acceptable”. In this regard, it is significant that, eight months after the completion of the final EIS, the state had yet only completed a “preliminary conceptual plan of the harbor shoreside facilities”. Defendant’s Exhibit 9, B-1. The standard of review of an EIS is whether the statement was prepared “without observance of procedure required by law”. Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.1974). An EIS will be found to be in compliance with NEPA when: its form, content, and preparation substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project’s environmental impact and encourage public participation in the development of that information. Trout, supra, 509 F.2d at 1283. In the instant case, it is clear that the EIS, when viewed as a whole, adequately disclosed the potential impacts of the harbor project, given the information then in hand, and gave the decision makers enough information so that an intelligent decision could be made as to whether to proceed with the project at that time. It also sufficiently highlighted the potential problems so as to encourage public participation in the development of further information. Moreover, the decision whether to proceed with a project (as opposed to the procedural requirements of NEPA), is judged by the “arbitrary and capricious” standard: Judicial review of the adequacy of an EIS is also circumscribed. The substantive decision whether to proceed with a project is committed to the executive and legislative branches of government with which the judiciary will not interfere in the absence of a showing that the choice was “arbitrary and capricious,” given the known environmental consequences. Warm Springs Dam Task Force, supra, 565 F.2d at 552. This court can find no basis to conclude that the decision to proceed with the harbor project, despite a lack of detailed information on the shoreside facilities sufficient to discuss more expansively the possible secondary effects, was either arbitrary or capricious. (2) Shoreside facilities. Plaintiffs also allege that the 1976 final EIS and 1977 Supplement failed to discuss the impacts of the State-funded shoreside facilities, which they allege are closely intertwined with the harbor project. NEPA requires federal agencies to provide a detailed environmental impact statement for “major Federal actions significantly affecting the human environment.” 42 U.S.C. § 4332(2)(C). Thus, for an action to be subject to NEPA, it must be shown to be “federal”. Friends of the Earth v. Coleman, 518 F.2d at 327. In the instant case, plaintiffs argue that the shoreside facilities, although entirely funded by the state, should be considered as part of the harbor project for NEPA purposes. They contend that the state could not proceed on the shoreside facilities without federal funding for the harbor since the facilities would be useless without the harbor. This court is not convinced that the shoreside facilities and the harbor itself are so “functionally interdependent” that they must both be considered as a single “federal action” for NEPA purposes. The harbor project, after all, did proceed without the finalization of the state’s plans for the shoreside facilities, and the size and scope of the shoreside facilities are not dependent upon the harbor itself. The instant situation is less like the sectioning of a highway into federal and non-federal portions to avoid the requirements of NEPA, and more like the situation in Friends of the Earth, supra, wherein the Ninth Circuit found that the federal government’s program for airport development was not so functionally interdependent with the state’s plans to build a terminal and a parking garage, despite a “substantial functional complementarity” between the federal and local projects. 518 F.2d at 329. In addition, this court can find nothing wrong in the failure to consider the shore-side facilities in the EIS when there was yet no detailed plan for such facilities. As noted before, the decision makers have elected to proceed with the harbor project without waiting for the state to finalize its plans for the shoreside facilities, and this court will not disturb that decision to proceed absent some showing that said decision was arbitrary and capricious. Warm Springs Dam Task Force, supra; Jicarilla Apache Tribe v. Morton, 471 F.2d 1275 (9th Cir.1973). Finally, this court notes that the State of Hawaii also prepared an EIS in September, 1978. The state’s EIS contains discussions of the harbor development’s anticipated effect upon land values in the industrial park, the probability of businesses relocating to the harbor area, impact upon the job market, secondary physical and social impacts, and affect upon population growth. In this regard, it is significant that the state’s EIS concludes that a sizable increase in the area’s population would be expected even without a harbor, as a result of governmental encouragement, favorable land use changes, and the lack of residential space in Honolulu. The Ewa plain population is projected to increase by only 1.5 percent due to the harbor itself. See Federal Defendants’ Exhibit 14, III—56—III—57. In addition, although the harbor is expected to contribute to the urbanization of leeward Oahu, the state’s general plan already calls for directing a substantial portion of Oahu’s population and economic growth toward the Ewa district. The state’s EIS notes that governmental land use policies and decisions will influence the rate and trends of development. Id., HI-63. In balancing the equities, it is significant that the secondary effects of the harbor project has been extensively discussed in the state EIS. As stated in Friends of the Earth, supra: the formal environmental review of the state construction projects is a factor in determining whether these projects should be halted. 518 F.2d at 330. C. Laches. Defendants for some reason have throughout these proceedings continued to insist that plaintiffs’ claims are barred by laches. This issue was resolved long ago, however, at the previous hearing on defendants’ Motion to Dismiss. There, this court held that Bowers was dispositive of this point. Defendants argue that plaintiffs are lacking in diligence, as evidenced by the fact that the final EIS was filed in 1976 and the complaint was not filed until 1982. In evaluating a party’s diligence, the factors to be considered include: (1) whether plaintiff has made an attempt to make his postion known to the agency before the filing of suit; (2) the agency response to the request; and (3) developments such as preparatory construction that tend to motivate citizens to investigate the legal bases for challenging the agency action. Id. at 779. See also, Preservation Coalition Inc. v. Pierce, 667 F.2d 851, 854 (9th Cir.1982). Plaintiffs contend that notice of opposition to the project was given to the defendants in 1977; that several of the plaintiffs filed suits challenging land use decisions allowing the project to proceed; and that several defendants testified at public hearings. The complaint was filed eight weeks after groundbreaking. In applying Bowers, this court has previously held that the defendants had failed to show that plaintiffs lacked diligence. The present record instead shows sufficient diligence on the part of the plaintiffs in presenting their claims—they gave notice to federal defendants of their opposition to the project in 1977, they filed various suits, participated in public hearings, and filed the instant suit only eight weeks after groundbreaking. Defendants contend that they are prejudiced, because they are now actively engaged in construction and will incur substantial losses if the project is halted. As before, this court has already held that defendants failed to demonstrate any prejudice. Increased cost due to delay is, under Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir.1982) and Bowers insufficient by itself to support a showing of prejudice. Moreover, the Ninth Circuit has consistently recognized that laches is not a favored defense in environmental cases. Bowers at 779; See also, City of Davis v. Coleman, 521 F.2d 661, 678 (9th Cir.1975) (“to make faithful execution of this duty contingent upon the vigilance and diligence of particular environmental plaintiffs would encourage attempts by agencies to evade their important responsibilities. It is up to the agency, not the public, to ensure compliance with NEPA in the first instance.”) D. Supplemental EIS. Plaintiffs contend that defendants were required to prepare and file a supplemental EIS on the basis of significant new information which arose after the 1976 EIS and 1977 Supplement were filed. Under 40 C.F.R. § 1502.9(c) (1981), the Corps must prepare such a supplement if it “makes substantial changes in the proposed action that are relevant to environmental concerns or there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” The standard of review on this issue is one of reasonableness; an agency’s decision not to supplement an EIS in light of new information will be upheld only if it is reasonable: When new information comes to light, the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures. Reasonableness depends on such factors as the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir.1980). In Warm Springs, the court examined plaintiff's contention that significant new information, which put into question a proposed dam’s ability to withstand earthquakes, required a supplemental EIS. The court found that, although the information was not so definitive as to compel initiation of formal supplementation it raised “sufficient environmental concerns to require the Corps to take another hard look at the issues.” Id. Following receipt of the information, the Corps had launched an extensive study, the results of which were reviewed and affirmed by various authorities. The court found that on the basis of the studies and reviews, the Corps could reasonably conclude that the new information was not significant, and therefore did not require the preparation of a supplemental EIS. Under Warm Springs, if the new information is not necessarily definitive so as to compel formal supplementation, it must at least raise sufficient environmental concerns in order to warrant a “hard look.” Should that hard look reveal, as it did in Warm Springs, that the information is not significant, then a supplemental EIS would not be required. Plaintiffs argue that there has been other significant new information since the filing of the 1976 EIS and the 1977 supplement which necessitates the filing of another supplement. (1) Population projections. 40 C.F.R. § 1500.8(a)(1) requires agencies to “identify, as appropriate, population and growth characteristics of the affected area and any population growth and growth assumptions used to justify the project or program or to determine secondary population or growth impacts resulting from the proposed action and its alternatives”. The 1976 EIS relied on the population projections issued by the State Department of Planning and Economic Development (DPED) in 1974. However, in 1978 the DPED issued revised population projections for the year 2000, which are 20% less than those used in the EIS. Plaintiffs claim that defendants failed to supplement the EIS on the basis of the projected decline in the Oahu population projections from 1,039,000 persons to 917,400 for the year 2000. They allege that such failure gives undue weight to the need for the harbor, through inflated estimations for shipping demand and the level of economic benefits. Plaintiffs rely on the 1979 “Evaluation of Barbers Point Deep Draft Harbor” prepared by the DPED, which states in pertinent part: “The project justification uses unrealistic and obsolete population and economic growth projections characteristic of the 1960’s and early 1970’s resulting in exaggerated projections of waterborne cargo.” Id. at 2. Plaintiffs should keep in mind that, a supplemental EIS is required only when the new circumstances are “relevant to environmental concerns”. 40 C.F.R. § 1502.-9(c). This court finds that the revised population projections, relate at most only to the need for the harbor, and thus does not raise any environmental concerns sufficient to require the Corps to even take a “hard look” at the information. (2) Archeological discoveries. Plaintiffs further argue that archaeological and paleontological survey work revealed considerable cultural deposits that were not previously identified or adequately incorporated in the EIS. Sometime after the filing of the 1976 EIS and the 1977 Supplement, the Corps commissioned an archaeological and paleontological study. This study was part of the Corps’ data recovery project designed to mitigate the effects of the construction on the archaeological sites in the particular area to be affected by the next phase of construction activity. As more fully discussed in the section of this opinion dealing with the National Historic Preservation Act, the Corps’ plans for the data recovery project had already been approved by the Advisory Council on Historic Preservation. The final report, “Archaeological and Paleontological Investigation at Kalaeloa (Barbers Point), Hono'uli’uli, Ewa, O’ahu” (Federal Defendants’ Exhibit 29e), sometimes referred to as the Hammatt/Folk report, concluded that further investigation would be unnecessary and that none of the sites were appropriate for preservation. It recommended complete archaeological clearance for the entire project area. Id. at 28. After certain revisions were made to the report at the request of the Advisory Council, the Advisory Council noted that it had “no major objection” to the report, but recommended peer review of the study. On the record are four such reviews, all of which are highly critical of the report. See Federal Defendants’ Exhibit 29a, Letter from the Advisory Council (November 27, 1981). Plaintiffs rely on Aluli v. Brown, 437 F.Supp. 602, 606 (D.Hawaii 1977), rev’d in part on other grounds, 602 F.2d 876 (9th Cir.1979), where the court found that the discovery of 92 archaelogical sites since the filing of the original EIS made the filing of a new or revised EIS imperative. The discovery of new sites, however, is distinguishable from conflicting scientific opinions on the significance of particular archaeological sites. Thus, defendants properly point out that mere disagreement among experts will not invalidate an EIS. Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir.1973), cert. den., 416 U.S. 461, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). In Life of the Land, the EIS being challenged had utilized four scientific studies and concluded that an airport reef runway project would result in improved water quality in the adjacent marine area. At trial, the plaintiffs introduced letters which questioned certain data and conclusions relied upon in the preparation of the EIS’ water quality analysis. Said the court: Apart from the obvious observation that the letter writers were, for the most part, not available for cross-examination, we note that disagreement among experts will not serve to invalidate an EIS. Indeed, ‘further studies, evaluation and analyses by experts are almost certain to reveal inadequacies or deficiencies'____ The [EIS] need not achieve scientific unanimity on the desirability of proceeding with the proposed action. (Citations omitted) 485 F.2d at 472-73. In addition, as more fully discussed in connection with the National Historic Preservation Act below, the Corps has, for each phase of construction which would affect archaeological sites eligible for inclusion in the Historic Register, made a determination of “no adverse effect” as to each area to be affected by the construction. These determinations have been concurred in by both the State Historic Preservation Officer and the Advisory Council on Historic Preservation. Given these determinations, which this court can in no way find to be either arbitrary or capricious, there is nothing to justify a conclusion that sufficient environmental concerns have been raised such as to require a supplemental EIS. Moreover, the discovery of additional sites since the filing of the original EIS is not significant in itself. As discussed below, the sites are neither unique nor unusual in Hawaii, and that their significance lies primarily in their research potential, which potential can be achieved by salvage of data from the sites prior to construction. See Federal Defendants’ Exhibit 9. The Corps and the State Historic Preservation Officer have twice concluded that in-place preservation of the sites would not be necessary. Federal Defendants’ Exhibit 29a. Under these circumstances, this court cannot find that a supplemental EIS would be required. (3) Impact on lifestyles. Plaintiffs argue that the impacts on lifestyles, fishing and the unique character of the Waianae Coast should have been evaluated in a supplemental EIS following the adoption of the Oahu General Plan in 1977 and the State Plan in 1978. In support of their position, they cite to a report prepared in 1980 by the City and County of Honolulu, entitled “Evaluation of Barbers Point Deep Draft Harbor” (Plaintiffs’ Exhibit 49). The thrust of the Evaluation, is that “the harbor would adversely impact the economy of Oahu and would irreversibly and adversely impact the pattern and sequencing of urban development of Honolulu, Hawaii’s major city.” Plaintiffs’ Exhibit 49, at 1. Although the 1976 EIS states that the project is consistent with the then existing Hawaii State Plan and Oahu General Plan, the Evaluation, concludes that the project “will conflict with both the subsequently adopted [1978] State Plan and the [1977] General Plan of the City and County that call for compact, orderly, energy efficient urban growth.” Id. at 4. This court fails to see how either the Evaluation, the changes to the State and General plans, or the changes in the population projections raise sufficient environmental concerns such that a supplemental EIS would be required. The intent of NEPA is to assure an intelligent evaluation of a federal project’s effect upon the human environment. See, Trout Unlimited, supra. Changes in factors which at most affect only the need or desirability of the project are not relevant to the analysis. The Evaluation, the changes to the plans and the changes in projected population growth all relate only to the need for the harbor. They will in no way affect the impact of the harbor itself upon the environment. This court finds, therefore, that those changes did not require a supplemental EIS. (4) Changes in disposal sites. Plaintiffs allege that the state’s changes in size and location of the disposal areas for stockpiled dredged coral necessitated consideration in a supplemental EIS of the dust, pollution and water needs effects. Defendants respond that more than speculation is necessary before the court can determine the need for a supplemental EIS, and plaintiffs have not made any showing that they are likely to succeed on the merits of this claim. This court finds that the above changes were in fact considered in the Corps’ 1983 Environmental Assessment and were determined to have an insignificant and short-term impact. Therefore, even assuming that these changes raised sufficient environmental concerns, the Corps took the requisite “hard look” and concluded that the changes were not significant. There is nothing in the record which would allow this court to conclude that this conclusion was unreasonable. (5) Changes in construction techniques. Plaintiffs allege that changes in construction plans, i.e., the widening of the existing entrance channel, caused increased turbidity and sedimentation not contemplated in the EIS. Defendants properly argue that plaintiffs have failed to make any evidentiary showing on this point. Plaintiffs rely on aerial photos showing plumes of sediment escaping the mouth of the harbor basin. However, the person who took those photos, Sherwood Maynard, testified that he did not know whether any dredging was going on at the time he took the photographs. The AECOS study (Plaintiffs’ Exhibit 19) indicates that either prevailing weather and sea conditions, or barge activity in the harbor, can result in high turbidity conditions absent any dredging activity. AECOS Study, p. 7, 13. In fact, the AECOS study shows that some of the highest NTU readings, taken at the mouth of the harbor, occurred when there was no harbor dredging. Id. at 7. Thus, on the record before the court, plaintiffs have completely failed to show that the widening of the existing entrance channel raised sufficient environmental concerns to warrant a hard look. (6) Blasting. Plaintiffs argue that blasting, which was not contemplated in the original 1976 EIS, has resulted in damage to coral reefs, killing of fish, structural damage to nearby homes, mental anxiety to occupants of those homes, and currently unknown effects on humpback whales (an endangered species), green sea turtles (a threatened species) and porpoises. The use of both onshore and offshore blasting was considered by the Corps in the 1983 Environmental Assessment, which concluded that there “will be no blasting activities which would result in significant adverse impact to marine life, water quality, and the terrestrial environment”. Plaintiffs’ Exhibit 22, p. 20. According to the testimony of John Maragos, who assisted in the preparation of the Assessment, this conclusion was supported by tests, monitoring and observations conducted by the Corps. Thus, defendants contend that the Corps reasonably concluded in its 1983 Environmental Assessment that blasting would not have any significant effects, and therefore did not warrant the preparation of a supplemental EIS. Plaintiffs have failed to show that this conclusion was unreasonable. As to offshore blasting, there is no evidence on the record that such blasting will result in any further significant effect upon the coral reefs beyond that caused by the recent hurricane Iwa. Also, there is undisputed testimony that the species and overall number of fish affected by offshore blasting are not significant. It was for these reasons, in fact, that this court lifted the TRO earlier imposed on the blasting activities at the project site. In addition, the only alleged significant effect of onshore blasting is structural damage to houses in the adjacent residential area. The court was not convinced that the alleged damage is within the zone of interest protected by NEPA. See Cobble Hill Assn. v. Adams, 470 F.Supp. 1077 (E.D.N.Y.1979). Moreover, the only conclusive evidence on the record of the effects of onshore blasting are the seismograph studies conducted at the behest of the Corps in the adjacent residential area, which concluded that vibrations were well below established safety levels. A.S. Furumoto & Assoc. Report at 9-10. There is therefore nothing in the record to conclude that the Corps’ decision not to file a supplemental EIS on the effects of blasting was unreasonable, arbitrary or capricious. (7) Change to Auger and Clamshell method. Plaintiffs contend that the change in dredging techniques from the hydraulic cutterhead to the auger and clamshell, was a significant change which may affect the environmental consequences of the project. The 1976 EIS and 1977 Supplement specified the use of the hydraulic cutterhead method for dredging the basin and entrance channel of the harbor. During the development of the plans and specifications however, the Corps decided to implement a water quality standard rather than specifying a cutterhead dredge method, on the grounds that the latter was anticompetitive. Peter Kiewit Sons, who obtained the contract as a result of a court order, proposed utilizing a combination auger and clamshell method of dredging. Plaintiffs contend that the conclusion is baseless as defendants have not conducted any tests by which to form a basis for predicting effects from the auger and clam-shell operations. Plaintiffs argue that past studies indicate that the clamshell operation will “probably” result in higher turbidity levels than would the hydraulic cutter-head method. Plaintiffs’ cited exhibits, however, do not support this proposition. Plaintiffs further contend that the turbidity measurements taken at the project site have often exceeded state water quality standards, and that excessive turbidity if prolonged can kill or adversely affect coral reefs. As noted before, however, many of these high readings are the result of wave and weather conditions, or the activity of barges- in the harbor, and not from dredging. In any event, there is nothing in the record to siiggest that the readings obtained would have differed if the original cutterhead/suction method was used. As noted in the Environmental Assessment, the cutterhead method of dredging would grind nearly 100% of the material to be removed, although much of the sediment would then be sucked up. The effectiveness of the suction would be reduced by such factors as pumping rates, cutterhead rotation rates, leaks in the pipeline, back-flushing, and other problems. Augering, on the other hand, would break up less than 30% of the material to be removed, although the clamshell would permit more sediment to escape. Plaintiffs' Exhibit 22, p. 16. On balance, the Corps concluded that there was no clear difference between the effects of the two dredging methods. Id. at 17. To mitigate adverse impacts, the Corps established and incorporated in the project plans and specifications, a turbidity control standard which would be applicable to any dredging method used. The Assessment states that “enforcing and monitoring the water quality conditions during open water construction operations should insure that impacts attributed to clam-shell/auger dredging above that anticipated for hydraulic cutterhead dredging will be avoided.” Id. at 18. There is nothing in the record to suggest that these conclusions were unreasonable, arbitrary or capricious. E. Applying the Test for Preliminary Injunction. Both sides invoke the public interest in support of their position. Defendants invoke the public interest based on Congress’ decision to proceed with the project. Plaintiffs contend that Congress has recognized that enforcing NEPA is in the public interest. Defendants also contend that an injunction would cost the public an estimated $55,000 per day for suspension of work and would delay public receipt of the benefits of the harbor. Their reliance on Committee for Charter Protection for Parks v. Weinberger, 16 E.R.C. 1433 (S.D.Cal. September 2,1981) and Rental Equipment Co. v. Meridian Engineering, 374 F.Supp. 892 (D.St.Croix 1974) however, is misplaced. Rental Equipment is inapplicable because environmental interests were not at stake in that case. Weinberger involved construction of a hospital, where the court found that in addition to the cost escalation factor of $20,000 per day for any delay, 400,000 people would be deprived of the hospital’s services during that time. These interests were found by the court to outweigh plaintiff’s environmental interests. In the instant case, this court finds, first of all, that the plaintiffs have not established a strong likelihood of success on the merits. In addition, the plaintiffs have raised few environmental concerns of much substance. Although increased cost from delay alone is usually not sufficient to establish prejudice, Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982), when the plaintiffs’ environmental concerns are balanced against the costs to the project for any delay, this court must find that the equities weigh in the favor of defendants. Accordingly, this court will decline to grant injunctive relief. IV. WATER RESOURCES DEVELOPMENT ACT. Under the WRDA and the regulations promulgated thereunder, the Corps is required in its cost-benefit computations to use a current discount rate determined by a formula and published by the Water Resources Council. 42 U.S.C. § 1962d-17(b); 18 C.F.R. § 704.39. However, for projects authorized by Congress prior to January 3, 1969 (as was the instant project) the Corps is allowed to use a 3V4% rate when the appropriate non-federal agencies have, pri- or to December 31, 1969, given “satisfactory assurances” to pay the required non-federal share of the project costs. Id. Plaintiffs argue that the Corps violated the WRDA by using the 3V4% discount rate without first obtaining such “satisfactory assurances” from the State of Hawaii to pay its share of the project’s costs. Plaintiffs claim that no such assurances could have been obtained. This court has previously held that the plaintiffs are not entitled to an injunction, preliminary or otherwise, against any construction of the deep draft harbor on the basis of the Water Resources Development Act (“WRDA”). The cases of Izaak Walton League of America v. Marsh, 655 F.2d 346 (D.C.Cir.1981); and Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir.1980), cited by both the plaintiffs and the federal defendants, make it very clear that such injunctive relief is not an appropriate remedy for a violation of the WRDA, and that plaintiffs at most are entitled only to an order requiring the Corps to use the appropriate discount rate in the preparation of their cost benefit analysis. Plaintiffs’ reliance upon Environmental Defense Fund v. Marsh, 651 F.2d 983 (5th Cir.1981) is misplaced. In that case, the court granted only prospective relief, noting that its holding was limited by the rule that congressional action based upon a specific cost-benefit analysis forecloses judicial review thereof. Thus, it could not order the Corps to correct past submissions to Congress, but it could and did order the Corps to cease using the inappropriate discount rate for all future computations. Plaintiffs again rely principally upon Environmental Defense Fund v. Marsh, 651 F.2d 983 (5th Cir.1981). In that case, the court considered a project which, like the deep draft harbor project in the instant case, was eligible to use the 3V4% discount rate provided satisfactory assurances were given by the state. The defendants argued that the question of whether satisfactory assurances were given is a matter committed to the discretion of the agency and is thus unreviewable by the court. They relied upon § 701 of the Administrative Procedure Act, 5 U.S.C. § 701(a)(2), which excludes from judicial review any actions that are “committed to agency discretion by law”. The Marsh court rejected this argument, noting that it can review at least whether some responsible official had in fact fulfilled his statutory duty to decide that the local assurances were satisfactory. In addition, the “agency discretion” exception is a narrow one, and is limited only to those situations where the statutes are drawn in such broad terms that in a given case there is no law to apply. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820-21, 28 L.Ed.2d 136 (1971). Because the Corps did enact an internal regulation which determined the adequacy of local assurances, the Marsh court held that this regulation established a “law to apply”. In Marsh, it was undisputed that the Corps did not comply with the specific requirements of the regulation. As a result, the court held that the Corps was not entitled to use the Z/i% rate in any future cost benefit analysis. Moreover, because the record contained no evidence at all that any Corps official made the specific determination that the local assurances were “satisfactory”, the court held that, regardless of the regulation, the Corps did not even comply with the broader legal requirements of § 1962d-17(b) itself. Id. at 1004-05. Remedial action was no longer possible, since the assurances had to have been given before December 31, 1969. Thus, the court ordered the Corps to cease using the 3V4% exemption and to use the normal discount rates in all future cost benefit computations. The regulation considered by the court in EDF v. Marsh is the same in all relevant respects as that presented in the instant case: The determination of the sufficiency of assurances rests with the Division or District Engineer. It is, therefore, essential that the le