Full opinion text
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTION ROTHSTEIN, Chief Judge. THIS MATTER comes before the court on a motion for summary judgment and a permanent injunction brought by Friends of the Earth and other environmental organizations (“FOE”) under their complaint for declaratory and injunctive relief. The instant motion concerns only defendant Army Corps of Engineers (“Corps”) and defendant the United States Navy (“Navy”). FOE asks the court to find that the environmental impact statements (“EIS”) prepared by the Navy and the Corps violated the environmental disclosure and informed decision-making requirements of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and that the Corps erred as a matter of law in granting the Navy a dredge and fill permit under Section 404 (“404 permit”) of the Clean Water Act (“CWA”), 33 U.S.C. § 1344. FOE seeks an injunction setting aside the Navy’s plans to dredge sediments in Everett Harbor and deposit them in Port Gardner Bay until such time as the Navy and the Corps adhere to their obligations under the environmental laws of the United States. Pursuant to the government’s request that the court announce its decision prior to July 22, 1988, the court issues this brief order, with a full memorandum decision to follow as soon as possible. Consequently, having reviewed the motion, together with all documents filed in support and in opposition, having heard oral argument by all parties, and being fully advised, the court finds and rules as follows: Under the Administrative Procedures Act, which governs judicial review of an agency’s preparation of an EIS and of the Corps’ decision to grant a 404 permit, the court “shall set aside any agency action” undertaken “without observance of procedure required by law” or found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A), (D) (1982); Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 590-91 (9th Cir.1988) (“NCAP”); Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986). The court recognizes that “NEPA is essentially a procedural statute” and that the court can not “substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action.” NCAP, 844 F.2d at 590-91. Likewise, the court also recognizes that it cannot set aside agency action as arbitrary or capricious “unless there is no rational basis for the action.” Hintz, 800 F.2d at 831. The court has no doubt that both the Corps and the Navy made substantial efforts to meet their NEPA and CWA obligations. Nevertheless, the court concludes that, for a variety of reasons to be detailed in the memorandum decision to follow, the various EISs did not satisfy their two primary purposes: (1) providing decisionmakers with “an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of the environmental consequences,” and (2) providing “the public with information and an opportunity to participate in gathering information.” Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 814 (9th Cir.1987). Although the Corps issued a detailed Record of Decision (“ROD”) in support of its decision to issue a 404 permit, the court concludes that the ROD did not eliminate the areas of environmental concern; therefore, the Ninth Circuit’s recent decision in Half Moon Bay Fishermans’ Marketing A’ssn v. Carlucci, 847 F.2d 1389 (9th Cir.1988) is not apposite. In addition, because the Corps’ decision to grant the Navy a 404 permit relies heavily on the conclusions of the EISs, the rational basis underlying that decision no longer exists. Because of this, and because of various other procedural violations, the court concludes that the Corps’ decision to issue a 404 permit was both arbitrary and capricious and otherwise not in accordance with law. A grant of summary judgment is appropriate here because no genuine issues of material fact exist with respect to the Corps’ and the Navy’s obligations under NEPA and the CWA, and because FOE is entitled to judgment as a matter of law. See IW. Electrical Service, Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630-631 (9th Cir.1987). Furthermore, for the reasons to be detailed in the memorandum decision to follow, the court concludes that an injunction should issue in these circumstances. The CWA’s dredge and fill permit requirements necessarily and inescapably require the issuance of an injunction. In any event, the NEPA violations are of such a nature that under traditional equity balancing the potential likelihood of environmental harm outweighs the national security concerns inherent in a delay of the Navy’s homeport project. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402-04, 94 L.Ed.2d 542 (1987); Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988). IT IS NOW, THEREFORE, ordered as follows: Plaintiff FOE’s motion for summary judgment and a permanent injunction is GRANTED. The court SETS ASIDE the Navy’s 404 permit and enjoins the Navy’s dredging project until such time as the Navy and the Corps comply with NEPA and the CWA as explained in the memorandum decision to follow. IT IS SO ORDERED. ORDER GRANTING PLAINTIFFS’ MOTION TO CLARIFY INJUNCTION THIS MATTER comes before the court on a motion by plaintiffs Friends of the Earth and other environmental groups (“FOE”) to clarify the court's previously issued injunction. Having reviewed the motions, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows: I BACKGROUND In a brief order issued pending publication of a more complete memorandum opinion, the court granted FOE’s motion for summary judgment and permanent injunction. Friends of the Earth v. Hall, NO. C88-380R, Order Granting Plaintiffs’ Motion for Summary Judgment and Permanent Injunction (July 20,1988). In framing injunctive relief the court stated that it “SETS ASIDE the Navy’s 404 permit and enjoins the Navy’s project until the Navy and the Corps comply with NEPA and the CWA ...” Id., at 912. Based on its understanding of the court’s intention, the Army Corps of Engineers (“Corps”) “suspended” the Navy’s permit and all work authorized under it, but allowed the Navy to continue with upland construction on the Homeport. Notice of Suspension of Navy’s Permit 2 (July 28, 1988) (“Suspension Notice”). Originally, FOE merely filed a response to the Suspension Notice. The government, however, treated FOE’s response as a motion to clarify or amend the court’s injunction, and filed a response. FOE then filed a proper motion to clarify, accompanied by a motion to shorten time and a reply to the government’s response. Because the government has already had an opportunity to respond, and has done so, and because FOE filed a reply brief, the court concludes that it is appropriate to rule on FOE’s motion at this time. II DISCUSSION As explained above, after suspending the Navy’s permit and all work authorized under it, the Corps allowed the Navy to continue with upland construction on the Homeport, including demolition and construction over several hundred acres. Suspension Notice, at 2. According to the Navy, termination of upland construction work now underway will result in additional costs of $13 to $18 million. FOE asks the court to clarify the scope of the injunction, by expressly enjoining the entire Homeport project until the Navy and the Corps fully address all environmental concerns surrounding the project. FOE argues that the National Environmental Policy Act (“NEPA”), the National Defense Authorization Act of 1987, Pub.L. No. 99-661, § 2207 (1986) (“1987 NDAA) (copy attached as exh. 1, Plaintiffs Response to Notice of Suspension), and the National Defense Authorization Act of 1988, Pub.L. No. 100-180, § 2322 (1987) (“1988 NDAA”) (copy attached as exh. 2, Plaintiffs Response to Notice of Suspension) require the cessation of all Homeport activity. The essence of FOE’s NEPA argument is that the upland work and the dredging activities are parts of one integrated project, and in order not to impair the government’s ability to perform balanced, thorough, environmental analysis and unbiased decisionmaking, NEPA requires that the injunction halt the entire project because the supplemental EIS would become “merely a progress report.... if any work continued during the review of the impact statement.” Stop H-S Assoc, v. Volpe, 349 F.Supp. 1047, 1049 D.Haw.), amended, 353 F.Supp. 14 (D.Haw.1972). FOE cites additional authority for this proposition. Massachusetts v. Watt, 716 F.2d 946, 952-53 (1st Cir.1983) (barred sale of offshore leases while new EIS prepared because otherwise the new EIS “may bring about a new decision, but that it is much less likely to bring about a different one”) (emphasis in original); Highland Cooperative v. City of Lansing, 492 F.Supp. 1372, 1383 (W.D. Mich.1980) (enjoining all parts of highway project because “[t]o allow defendants to make a substantial commitment of resources to one segment, while preparing the EIS for the other would be to avoid the spirit and letter of NEPA”). As the First Circuit has recognized, the risk of bias resulting from the commitment of resources prior to a required thorough environmental review is the type of irreparable harm that results from a NEPA violation. Massachusetts v. Watt, 716 F.2d at 952-53. Although the court has real concern that continued upland construction would in fact impair the Corps’ ability to engage in unbiased decisionmaking, the court finds it unnecessary to rule on whether NEPA requires the court to enjoin the entire Home-port project. Rather, the court finds that the NDAA unequivocally prohibits the expenditure of any Homeport funds until the Navy and Corps address the environmental concerns set out in the court’s forthcoming memorandum opinion. Homeport appropriations for fiscal years 1987, 1988, and 1989, contain a provision prohibiting the Navy from obligating or expending funds for the Homeport until “all Federal, state, and local permits required for the dredging activities to be carried out with respect to [the Homeport] have been issued.” 1987 NDAA, § 2207 (a) (1); 1988 NDAA, § 2322 (c). The legislative history clearly demonstrates that Congress intended to prohibit expenditures of Homeport funds “to ensure that environmental concerns are fully addressed prior to the initiation of construction.” Conf. Rep.H.R. 1748, 1987 NDAA (attached as exh. 3, Plaintiffs’ Response to Suspension). Based on these provisions, the Ninth Circuit held that the NDAA required an injunction covering all Homeport expenditures until the Washington Shorelines Hearings Board issued its decision on the Navy’s shorelines permit. Friends of the Earth v. Navy, 841 F.2d 927, 932 (9th Cir.1988). The government raises two arguments for why the court should not craft its injunction to conform with Congress’ intent. First, in a hypertechnical procedural argument, the government contends that the court should not even address the NDAA issue because FOE brought this lawsuit to enforce NEPA and the Clean Water Act (“CWA”), not the NDAA. Because FOE’s complaint asked the court to enjoin activities covered by the 404 permit, Compl., at 26, the government contends that FOE must file a new action for the court to address the NDAA claim. However, FOE asked the court to declare defendants’ actions as “arbitrary and capricious, not in accordance with law, contrary to 5 U.S.C. § 706 (2)(A).” Compl. 115. As to relief, FOE requested that the court “grant plaintiffs such additional and further relief as the court may deem just and proper.” Compl. II8. No purpose would be served in requiring FOE to initiate a new law suit to litigate the scope of the court’s injunction. Thus, the court concludes that under the liberal pleading requirements of Fed.R. Civ.P. 8, FOE’s complaint seeks relief under the NDAA. Because it claims that the NDAA issue is not before the court, the government chose not to address the issue in detail. Nevertheless, the government does cite a subsequent decision in FOE v. Navy, where the Ninth Circuit found that the Shorelines Board decision constituted issuance of the Shoreline permit, even though state court review was still to come. Friends of the Earth v. Navy, 850 F.2d 599 (1988). There, the Ninth Circuit observed that in the NDAA, “Congress [did not intend] the concept of issuance to become enmeshed with the intricacies of the State of Washington’s judicial review proceedings concerning agency action.” Id., at 601 (attached as exh. 1, Response to FOE’s Motion To Clarify). Based on this aspect of the Ninth Circuit’s holding, the government asks this court to view its setting aside of the 404 permit, as merely suspending the permit, rather than revoking it. Again citing the added cost, the government argues that the equities dictate a suspension, rather than a revocation. In addition, the government contends that once it has cured the NEPA “procedural” violations, the Corps may decide “to reinstate or modify the permit, which would only be possible if the 404 permit is suspended [because] if it is revoked there would have to be an entirely new permit application.” However, to suspend the permit would not conform with the CWA nor with the spirit and intent of Congress’ prohibition of the use of Homeport funds. EPA guidelines prohibit the Corps from issuing a 404 permit where a practicable alternative exists or where the dredge and fill material will cause or contribute to the significant degradation of United States waters. 40 C.F.R. § 230.11 (a), (c). As the forthcoming memorandum opinion explains, the court has found that the Corps acted unlawfully in finding that no practicable alternative exists and that no significant degradation will occur. Thus, the Corps’ did not legally issue the Navy’s 404 permit, and by setting it aside, the court held that no permit exists. Because the court has in essence revoked the permit, as required by the CWA, the Ninth Circuit’s most recent pronouncement concerning the intricacies of judicial review does not apply. Congress specifically decided that no funds be expended in order to “ensure” that all environmental issues be fully addressed. Conf.Rep.H.R. 1748, 1987 NDAA; FOE v. Navy, 841 F.2d at 982. By setting aside and revoking the 404 permit, the court has held that those issues have not been addressed. Thus, to meet Congress’ intent, the court’s injunction must prohibit the expenditure of all Homeport funds until the NEPA and CWA violations have been cured by a thorough, unbiased supplemental investigation and EIS. See FOE v. Navy, 841 F.2d at 927 (to ensure that environmental concerns would be fully addressed prior to construction, “Congress provided only one method to achieve its purposes” — a permanent injunction). IT IS NOW, THEREFORE, ordered as follows: The court GRANTS plaintiffs’ motion to clarify, and in conformance with the express mandate of the 1987 and 1988 NDAA, the court permanently enjoins the Navy from obligating or expending any funds for construction of the Everett Homeport until such time as the government complies with NEPA and the Clean Water Act as explained in the court’s forthcoming memorandum opinion. MEMORANDUM DECISION Plaintiffs, Friends of the Earth and other environmental organizations (“FOE”), filed a complaint for declaratory and injunctive relief, seeking to halt the United States Navy’s (“Navy”) plans to dredge contaminated sediments in Everett Harbor and deposit them in Port Gardner Bay. FOE contends that the environmental impact statements prepared by the Navy and the Army Corps of Engineers (“Corps”) do not fulfill the statutory mandate of the National Environmental Policy Act and that, in granting the Navy a dredge and fill permit, the Corps violated the Clean Water Act. In a previously issued order, the court concluded that the environmental impact statements did not comply with NEPA and that the Corps had violated the Clean Water Act. Consequently, the court granted summary judgment and enjoined the Navy’s dredging project. This opinion sets out in detail the facts, conclusions, and reasoning underlying the court’s injunction. I FACTUAL AND PROCEDURAL BACKGROUND A. Factual Overview The Navy plans to build a permanent “Carrier Battle Group Homeport” (“the Homeport”) at Everett, Washington “as part of the Navy’s comprehensive defense strategy.” Friends of the Earth v. U.S. Navy, 841 F.2d 927, 929 (9th Cir.1988) (“FOE v. Navy”). Those charged with making military decisions consider the Homeport to be a critical and integral part of the nation’s maritime strategy. Trost Declaration, at ¶¶ 6-8. To accommodate the Navy vessels, extensive dredging of the harbor’s East Waterway will be required. The Navy intends to dredge approximately 3.4 million cubic yards of sediment from the East Waterway and to dispose of the spoils at a 380-acre site in Port Gardner Bay at depths of 310 to 430 feet. FOE v. Navy, 841 F.2d at 929. Because the area to be dredged has been a repository for industrial wastes, a two to six foot deep layer of thick soup closely resembling “black mayonnaise” covers the floor of the waterway. Thus, “approximately one-third of the dredge spoils are contaminated with heavy metals and organic compounds.” Id. To ensure that all contaminated sediments have been removed, the sediments classified as “contaminated” include this layer of black mayonnaise and an overdredging layer of one to two feet below the layer of black mayonnaise. The Navy intends to dispose of contaminated and “clean” dredge spoils using a disposal technique called Confined Aquatic Disposal (“CAD”), and refers to the disposal site as “Revised Application Deep CAD” (“RADCAD”). “The CAD disposal system involves in-water disposal of contaminated dredge spoils followed by disposal of clean sediment which, theoretically, will cap and isolate the contaminated material from the marine environment.” FOE v. Navy, 841 F.2d at 929. First, the Navy intends to construct a downslope containment berm at the RADCAD site by dredging “clean” materials using a clam-shell dredge, which will load the dredged materials into barges. The barges will then transport the berm material to the site, and once properly positioned, the barges will open, allowing the sediments to fall to the bottom of Port Gardner Bay. Once the berm has been constructed, contaminated materials will be dredged and deposited at the RADCAD site using the same process. Native sediments lying below the contaminated sediments will then be hydraulically dredged, pumped to the RADCAD site by pipeline, and released under pressure to form a “clean” cap over the contaminated sediments. Disposal will take place in two stages. Phase I involves dredging approximately 836,000 cubic yards of sediment, with 100,000 cubic yards characterized by the Navy as contaminated. Nine months after the completion of Phase I, the Navy intends to begin Phase II, which involves disposal of approximately 828,000 cubic yards of contaminated and 1,636,000 cubic yards of “clean” dredge spoils. The RADCAD site adjoins an environmentally sensitive area that serves as a breeding ground and provides the primary food supply for a variety of commercially important species of fish and wildlife. United States Fish and Wildlife Service (“FWS”), Impacts of the Proposed Navy Homeporting Project, Everett, Washington (“FWS Report”) 17-34 (January, 1987), Complaint exhibit 3 (“Compl. exh.”). The Ninth Circuit observed that “the CAD method is experimental at [the proposed] depths and the harm to the marine environment which would occur should the contaminated spoils not be contained would be substantial.” FOE v. Navy, 841 F.2d at 929. Because of the environmental sensitivity of the RADCAD site, and a perceived uncertainty of the CAD disposal method, the Navy’s dredging plans generated opposition from FWS and the United States National Marine Fisheries Service (“NMFS”). Id. B. Prodedural History 1. Federal and State Environmental Requirements A variety of federal and state environmental laws require the Navy and the Corps to undertake certain actions. Pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., environmental impact statements (“EIS”) were prepared. The Navy prepared a draft and a final EIS (“FEIS”). Before the Navy could discharge dredged or fill material into the navigable waters of the United States, it had to apply to the Corps for various permits including a dredge and fill permit under Section 404 (“404 permit”) of the Clean Water Act (“CWA”). In deciding whether to issue the various permits, the Corps prepared and issued a draft (“DSEIS”) and a final supplemental EIS (“FSEIS”). With respect to the Navy’s 404 permit application, regulations require the Corps to issue a public notice, 33 C.F.R. 325.3, which triggers a public comment period lasting from 15-30 days. 33 C.F.R. 325.2(d)(2). No dredge and fill permit can issue unless the Corps determines that the proposed project conforms to EPA guidelines set out 40 C.F.R. § 230 Subpart B. When the Corps reaches a decision on the permit application it issues a formal Record of Decision (“ROD”) explaining its rationale and setting forth its findings. The State of Washington plays a role in this process under both federal and state law. As a prerequisite for obtaining a 404 permit, section 401 of the CWA requires the Navy to obtain a state water quality certification (“WQC”), certifying that Washington’s water quality would not be adversely affected by the activities authorized by the 404 permit. In Washington, the Department of Ecology (“Ecology”) issues a WQC, with a right of appeal to the three-member State Pollution Control Hearings Board (“Pollution Board”). Washington law also required the Navy to obtain a separate shoreline permit from the City of Everett pursuant to the Shoreline Management Act (“SMA”), RCW 90.58.-010-.930. Ecology must approve the shoreline permit, with a right of appeal to the 6-member Shorelines Hearing Board (“Shorelines Board”). The members of the Pollution Board constitute one-half of the six-member Shorelines Board. RCW 90.-58.170. 2. Procedural Chronology In November of 1984, the Navy published its draft EIS. After holding a public hearing and receiving written comments, the Navy revised its draft and on June 5, 1986, published its FEIS, which contained two volumes of technical appendices and one volume of letters of comment. This report, and the technical appendices on which it relied, focused on the Navy’s preferred CAD site known as Deep Delta, with the majority of the site in 250 feet of water. The Corps determined that a supplemental EIS was required, but just prior to publication of the Corps’ draft supplemental EIS (“DSEIS”), the Navy announced that, in response to concerns regarding dungeness crab populations at the original site, it had moved the Deep Delta site downslope to a new site in water 220-320 feet deep. The Corps published its DSEIS in July of 1986. In commenting on the draft DSEIS, the FWS criticized the Corps’ analysis on a variety of topics and concluded that the Navy’s CAD proposal “would pose a significant risk to fish and wildlife resources.” FSEIS, XIII-62 (letter dated Sept. 5, 1986). Likewise, the NMFS was very critical, concluding that “open water disposal of contaminated sediments from the East Waterway should not be performed in Port Gardner Bay.” FSEIS, XIII-47 (Letter dated Sept. 4, 1986). Both the FWS and the NMFS believed that upland disposal alternatives, located at Smith Island, offered the best opportunity for limiting potential environmental impacts and required more detailed study. Id. While the Corps continued work on its EIS, the Navy submitted its third revised application for a “404 permit” on September 29, 1986, identifying yet another location further downslope, the present RAD-CAD site, as its preferred site. Record of Decision, at 4 (compl. ex. 1). On October 7, the Corps issued its public notice concerning the Navy’s third revised application, with a 30 day public comment period. The public comment period on the 404 application ended on the same day as the Corps published its FSEIS, November 6, 1986. The FSEIS text consisted of two volumes, including responses to letters of comment, and a separate volume devoted to technical appendices. The public comment period on the Corps’ FSEIS ended on December 6, 1986, and the Corps itself did not, at any time thereafter, provide further public comment on any aspect of its decision. In January, 1987, Ecology held its only public hearing on its draft WQC. Thornton Decl. attachment, at 2. The draft WQC required that contaminated sediments greater than 3 centimeters (“cm”) thick be covered by cap material, Administrative Record (“AR”): 8-304, and contained an Appendix A entitled Construction, Operation, and Monitoring Requirements. AR: 8-307. On March 2, 1987, Ecology issued the WQC, but with specific additional conditions. The WQC requires substantial changes in project design, including making the smaller Phase I of the project serve as a pass/fail test for Phase II, and requiring a specific monitoring plan to assure that Phase I succeeded. If the Navy fails to demonstrate that Phase I met certain pass/fail criteria, the RADCAD site cannot be used for Phase II. The WQC required a 1 meter (“m”) cap, but only for contaminated sediments greater than 3 cm thick, AR: 13-341, contained Appendix A, which underwent significant changes from the draft, AR: 13-348, and contained a new Appendix B, setting forth specifics for baseline surveying and a monitoring program to evaluate the environmental effects of Phase I disposal, AR: 13-379. Although the WQC required the Navy to submit a draft monitoring plan incorporating these requirements, it did not set out specifics for monitoring Phase II or the long-term. AR: 13-380. On March 31, 1987, FOE and others appealed to the Pollution Board, seeking to challenge Ecology’s decision to issue the WQC. The Corps did not immediately adopt the WQC requirements and issue the 404 permit because the FWS and NMFS continued to object to the project. In its report issued in January, 1987, the FWS characterized the CAD proposal as experimental and continued to oppose the project even with the WQC draft requirements. See Compl. exh. 3. In April, the NMFS again asserted its opposition to CAD, contending that because the final WQC requirements were not sufficient, CAD would have “unacceptable adverse impacts on aquatic and fishery resources.” NMFS Letter of April 3, 1987 (Compl. exh. 4). However, after extensive negotiations between the Corps’ North Pacific Division and the resource agencies, held pursuant to 33 U.S.C. § 1344(q), a memorandum agreement was reached on May 21, 1987 (“Memorandum Agreement”). The Agreement contained mutually acceptable specific conditions to be included in the 404 permit in addition to the WQC requirements. NMFS Letter of May 21, 1987 (Compl. exh. 5); AR:12-2 (letter of Sept. 18, 1987). Despite reaching this compromise, the resource agencies continued to recommend upland disposal, and believed that the results obtained from the studies required by the Memorandum Agreement “may well lead us to upland disposal.” Compl. exh. 5. The City of Everett issued a shoreline permit on June 10, 1987, and Ecology gave its approval on July 8, 1987. FOE and others appealed the issuance of the shoreline permit to the Shorelines Board on July 29, 1987. Because the three members of the Pollution Board also sit on the six-member Shorelines Board, and because the shoreline permit appeal and the WQC appeal concentrated on water quality considerations, the Shorelines Board and the Pollution Board heard the appeals concurrently. During this same time period, the Navy issued its draft monitoring plan, which generated strong criticism from the NMFS, see NMFS Letter of August 28, 1987 (Compl. exh. 10), and by the Corps itself. See Corps Letter of August 27, 1987 (Compl. exh. 11). On September 1, 1987, while the state administrative appeals were still pending, the Corps’ Chief of Engineers notified the NMFS and FWS of his rejection of a majority of the special conditions required by the Memorandum Agreement as either inappropriate or unnecessary. Letter from E.J. Hatch, Chief of Corps of Engineers, September 1, 1987 (Compl. exh. 6); NMFS Letter of October 5, 1987 (Compl. exh. 7). Because the 404 permit did not include a majority of the conditions contained in the Memorandum Agreement, the FWS and NMFS had “no recourse but to revert to [their] original recommendation for upland disposal of contaminated material” in part because “a number of monitoring actions [were necessary] to determine the effectiveness of untried deep water disposal process.” Letter of Sept. 18, 1987 (AR 12:2). The FWS and NMFS recommended denial of the 404 permit because “the project, as proposed and conditioned, poses a risk of significant adverse effects to fish, shellfish, and the aquatic ecosystem from the discharge of pollutants, and may contribute to the significant degradation of Port Gardner Bay.” Letter of Sept. 18, 1987 (AR 12:3) (emphasis added). Although FWS and NMFS could have taken their objections to the Washington D.C. level of the Corps, they chose not to do so because they thought it futile. Id. at 3. The Corps issued the 404 permit and its accompanying ROD on September 24, 1987. See Complaint exh. 1. The 404 permit incorporated the WQC conditions including the monitoring plan specifics set out in Appendices A and B of the WQC. However, the Navy’s final monitoring plan was not released until November of 1987, and not approved by the Corps until April of 1988. After issuance of the 404 permit, FOE sought an injunction to prevent commencement of the dredging project before state administrative bodies had an opportunity to rule on its appeals. On appeal, the Ninth Circuit held that the National Defense Authorization Act required Homeport expenditures to be enjoined until the shoreline permit had been approved by the Shorelines Board. FOE v. Navy, 841 F.2d at 936. On May 17, 1988, the Pollution Board and the Shorelines Board issued their decisions. By a 2-1 vote, the Pollution Board affirmed the issuance of the WQC. FOE v. Department of Ecology, PCHB Nos. 87-63 and 87-64 (Findings of Fact Conclusions of Law And Order). (“PCHB’) (attached as ex. 1, Opp.Mem.) The Shorelines Board split 3-3, with three members affirming the WQC as issued, adopting the Pollution Board’s findings and conclusions. FOE v. Navy, SHB Nos. 87-31 and 87-33 (May 17, 1988 (Final Findings of Fact Conclusions of Law And Order) (“SHB, Dufford et. al ”) (attached as exhibit 2, Opp.Mem.). The three other Shoreline Board Members issued a competing set of findings and conclusions affirming a permit but placing additional conditions and requirements. Id. (“SHB, Bendor et al”). Under Washington law, a split vote results in affirmance of the WQC as issued by Ecology. FOE then petitioned the Ninth Circuit not to lift its injunction until a state court acted. The Ninth Circuit rejected FOE’s request. Friends of the Earth v. Navy, 850 F.2d 599, 601 (Ninth Circuit June 30, 1988). Most recently, a King County Superior Court refused to lift a stay of the Navy’s permit until such time as the Navy complied with certain additional requirements set out by three members of the Shorelines Board in SHB, Bendor et. al. C. The Instant Cause of Action While awaiting resolution of the state permit issues, FOE filed a complaint in this court, seeking declaratory and injunctive relief against EPA, the Corps, and the Navy on issues of Federal law distinct from those considered by the Ninth Circuit. FOE seeks a permanent injunction alleging (1) that the EISs prepared by the Navy and the Corps violated the environmental disclosure and informed decisionmaking requirements of NEPA; and (2) the government’s flawed analysis of the environmental consequences of, and alternatives to, the Navy plan violated section 404 of the CWA, EPA’s implementing regulations, and the Corps’ own public notice requirements. The government responds in depth to each of FOE’s contentions. In addition, the government points out that the Chief of Naval Operations has stressed that expeditious completion of the project is vital to our national security. Trost Decl. II10. As a threshold matter, the government argues that decisions by Washington State administrative bodies should preclude FOE from contesting various factual issues. II EFFECT OF STATE ADMINISTRATIVE DECISIONS The government contends that the state hearing boards performed an exhaustive de novo review of many environmental issues now before the court and rejected FOE’s position on a variety of factual issues. Consequently, the government argues that the court should either (1) grant these decisions preclusive effect because of the doctrines of issue preclusion (collateral estoppel) and comity; or (2) accord the state boards’ findings great deference and dignity. The court finds the government’s arguments unpersuasive. To determine the preclusive effect of state judgments in federal court, the court must apply state law. Fernhoff v. Tahoe Regional Planning Agency, 803 F.2d 979, 986 n. 8 (9th Cir.1986). Washington accords preclusive effect to agency determinations of factual issues if certain conditions are met. Shoemaker v. Bremerton, 109 Wash.2d 504, 507-08, 745 P.2d 858 (1987). In addition, the United States Supreme Court has held that collateral estoppel should not be invoked when doing so denies a party a “full and fair opportunity” to litigate the issue in question. Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). The court finds it inappropriate to give preclusive effect to any factual findings entered by the state boards. The fact that the six-member Shorelines Board issued an evenly split (3-3) decision makes untenable the government’s argument that the Shorelines Board rejected FOE’s factual contentions. In fact, three board members would not have allowed the Navy’s dredging plan to proceed as presently designed because “without additional shoreline permit criteria [the RADCAD disposal] will likely ... cause chronic long-term toxic effects to the aquatic life of Puget Sound.” SHB, Bendor et. al. at 46. In any event, an even split of the board does not constitute a binding decision, and merely leaves the permit standing as issued. Hayes v. Yount, 87 Wash.2d 280, 295-96, 552 P.2d 1038 (1976). Consequently, collateral estoppel principles do not apply. Shoemaker v. Bremerton, 109 Wash.2d at 507-08, 745 P.2d 858; see also, Peterson v. Department of Ecology, 92 Wash.2d 306, 313, 596 P.2d 285 (1979) (collateral estoppel inapplicable where administrative board’s decision is “ambiguous and inconsistent”). Even though the Pollution Board did unambiguously uphold the WQC by a 2-1 vote, the Board merely resolved state legal issues. It did not, and could not, address the Corps’ responsibilities under section 404 of the CWA or the sufficiency of the federal EISs under NEPA. Collateral estoppel does not apply where the second proceeding involves different legal standards, even though the facts are identical. Clark v. Watchie, 513 F.2d 994, 999 (9th Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975); Peterson v. Clark Leasing Corp., 451 F.2d 1291, 1292 (9th Cir.1971) (per curiam). A state administrative decision does not have preclusive effect on federal court review of a 404 permit because the state body “could not relieve the Corps of its obligation under NEPA or bind it in its determinations.” Sierra Club v. Alexander, 484 F.Supp. 455, 464 (N.D.N.Y.), aff'd mem., 633 F.2d 206 (2d Cir.1980). Under these authorities collateral estoppel would not be appropriate in this case. Moreover, according preclusive effect to either board’s decision would be inappropriate because the record before the court contains a variety of evidence not reviewed at the state level. To grant preclusive effect under these circumstances would contravene public policy and work an injustice on FOE, circumstances that prevent the application of collateral estoppel. Shoemaker v. Bremerton, supra; see also Allen v. McCurry, 449 U.S. at 95, 101 S.Ct. at 415. Nor does the court believe that it must accord deference to the Pollution Board’s findings. The government bases its deference argument on the conclusive effect given to the WQC on water quality issues. See 33 U.S.C. § 1371(a); see also Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir.1986) (under Corps regulations, 33 C.F.R. § 320.4(d), a WQC certification is conclusive with respect to water quality considerations) {“FOE v. Hintz ”). However, 33 U.S.C. § 1371(a) expressly refers to activities under the Rivers and Harbor Act, and makes no reference to the CWA. Even though the Ninth Circuit referred to the conclusive effect of a state certification under corps regulations with respect to “water quality,” the court did not address whether this applies to the various other EPA criteria governing the issuance of a 404 permit, see 40 C.F.R. § 230.10(a)-(d). Moreover, legislative history reveals that by requiring a state WQC, Congress merely intended to assure that a 404 permit would reflect state water quality standards, and that section 401 was not intended in any way to supplant requirements for obtaining a 404 permit. Monongahela Power Co. v. Marsh, 809 F.2d 41, 53 n. 114 (D.C. Cir.1987). Finally, the Ninth Circuit in FOE v. Hintz held that the appellants were foreclosed from raising the water quality issue with respect to the 404 permit because, unlike FOE, the Hintz appellants “did not challenge [Ecology’s] certification, or the preclusive effect of this regulation, in any proceeding below.” 800 F.2d at 834. For the above reasons, the court declines to accord preclusive effect or deference to the various state board decisions. Refusing to view either set of findings and conclusions with deference does not mean, however, that the court will not review the state board decisions to determine whether their respective analyses help explain the federal administrative record now before the court. Ill NEPA CHALLENGE A. Standard of Review Review of agency determinations under both NEPA and the CWA is generally limited to the administrative record. FOE v. Hintz, 800 F.2d at 828-29; Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). Under certain circumstances, the court may consider evidence outside the record. Animal Defense Council, 840 F.2d at 1436. Circumstances relevant here include (1) “when necessary to explain the agency’s action,” Id.; (2) when “necessary to explain technical terms or complex subject matter involved in the agency action,” Id.; and (3) when necessary “to ascertain whether the agency considered all relevant factors or fully explicated its course of conduct or grounds of decision,” FOE v. Hintz, 800 F.2d at 829. FOE and the government offer a variety of extra-record evidence, including the decisions of the state boards and declarations of various scientists and engineers. In most instances, the extra-record evidence explains the data and factors on which the Navy and the Corps relied, and thus can be relied upon by the court. Judicial review of an agency’s preparation of an EIS is governed by the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(D) (1982), under which the court may set aside agency action undertaken “without observance of procedure required by law.” Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 590-91 (9th Cir.1988). Because “NEPA is essentially a procedural statute”, the court can not “substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action.” Id. Therefore, the adequacy of an EIS depends upon the rule of reason; “a reviewing court may not ‘fly speck’ an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies.” Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815 (9th Cir.1987) (citations omitted). Thus, the issue before the court is not whether CAD will work or whether the court would choose CAD as a disposal method. Rather, the court must determine whether the EISs satisfy their primary purposes of (1) providing decisionmakers with “an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of the environmental consequences,” and (2) providing “the public with information and an opportunity to participate in gathering information.” Methow Valley, 833 F.2d at 814. FOE argues that the Corps and Navy failed to meet their NEPA obligations with respect to three general areas: (1) technical/scientific issues; (2) treatment of a proposed upland alternative; and (3) reasonable mitigation measures. B. Technical/Scientific Issues: Scientific Uncertainty and Controversy FOE contends that the Navy and the Corps violated NEPA by failing to disclose and address uncertainty and scientific controversy as to CAD’s technological feasibility and the significant risk of environmental harm it poses. In response, the government argues that all environmental issues were aired and the project as presently constituted “poses no environmental risks.” Opp. Mem. 12. The court will address the technical/scientific issues separately, keeping in mind that NEPA “does not require [a court] to decide whether an EIS is based on the best scientific methodology available, nor does NEPA require [a court] to resolve disagreements among various scientists as to methodology.” Oregon Environmental Council v. Kunzman, 817 F.2d 484, 4966 (9th Cir.1987). Moreover, when the Corps issues factual findings involving highly technical areas of expertise, the court must accord them a high degree of deference. Sierra Club v. Froehlke, 816 F.2d 205, 215 (5th Cir.1987). A federal court is not in the business of resolving scientific disagreements between plaintiffs’ experts and the Corps’ experts. Story v. Marsh, 732 F.2d 1375, 1381 (8th Cir.1984). Nevertheless, the court must ensure that the Corps and the Navy adequately considered and disclosed the environmental impact of the dredging project. Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). 1. Technological Feasibility: How “Certain” is “Certain”? FOE contends that the Corps’ treatment of CAD’s technological feasibility violated NEPA in two ways: (1) the Corps failed to disclose in the text of the FSEIS the experimental nature and uncertainty surrounding the RADCAD project; and (2) relying on its conviction that the project would be successful, the Corps failed to assess the environmental impact of a technological failure. In response, the Corps contends that the project’s careful design, including extensive monitoring and conservative assumptions, negates the importance of any alleged uncertainty. After careful review of the record, the court concludes that the Navy’s and the Corps’ EISs violated “the touchstone” of NEPA obligations, failing to disclose sufficient information to ensure that “informed decision-making and informed public participation” will take place. State of Cal. v. Block, 690 F.2d 753, 767 (9th Cir.1982). The text of the various EISs does not reveal the forthright admission contained in the ROD issued almost a year later: the CAD technology has “potential for major environmental impacts ” that can be avoided “if the RADCAD operation works according to design.” AR: 13-256 (emphasis added). Despite this admission in the ROD, careful scrutiny of the entire administrative record before the court reveals that the Corps did not identify and discuss the specifics of the “major environmental impact” that would result if CAD does not perform as predicted. No disclosure took place because the Corps displayed an unwavering certainty in CAD’s ability to perform as predicted and total reliance on the WQC monitoring plan to avoid any environmental consequences in the unlikely event that the technology fails to perform as expected. However, the court finds that, in contrast to the certainty of RADCAD’s success displayed in the text of the EISs, the technical appendices and the real world experience with CAD demonstrate that the disposal plan is experimental, subject to a significant degree of uncertainty, and presents a significant risk of failure. The Corps’ EIS characterizes the RAD-CAD disposal project as merely involving an “extension” of existing technology, FSEIS, III — 62, maintaining that “the only identifiable reason for cap failure is insufficient volume of cap materials.” Id. at II-31 (emphasis added). In its briefing to the court and in its oral argument, the Corps continues to assert unconditionally that the capping technology will perform as predicted. See, e.g., Opp. Mem. Sec. 11(B)(2). In support of its certainty of success, the Corps asserts that placement technology is based upon modelling and state of the art techniques which will be monitored to assure proper cap placement. Yet, close scrutiny reveals that the Corps’ own data and conclusions do not support its dogmatic belief in the certainty of RADCAD’s success. The Corps bases its predictions of sediment behavior on research and analysis gathered from three field sources: (1) successful examples of CAD technology; (2) a number of open water, uncapped disposal sites at various depths, FSEIS, App. B., at 12-17; and (3) a Yale University study that found the same processes govern material disposal behavior at depths ranging from 60 to 220 feet, see FSEIS, App. B., at 27. In addition to field results, the Corps also conducted a numerical modeling study using a model originally developed by EPA, known as the DIFID model. Based on its modelling and analysis of field data, the Corps’ concluded that the laws of physics governing the descent of disposal materials are consistent at any depth, and therefore “the behavior [of disposed sediments] can be appropriately estimated [at any depth].” Palermo Decl. 1163 Although the various field studies and modelling support the Corps’ contention that RADCAD is technologically feasible in the abstract, the acknowledged limitations of this data demonstrate that CAD technology is at best experimental and uncertain at RADCAD depths. For example, the Corps acknowledges that DIFID modelling was not conducted for RADCAD conditions (310-430 feet deep). Rather, modelling concerned conditions existing at the Deep Delta, 265-foot-deep site, and the Corps merely made mathematical adjustments to take account of the “slightly deeper” water at RADCAD. Palermo Decl., at 20. The Corps further acknowledges that DIFID modelling has severe limitations, being incapable of predicting sediment behavior for more than a single bargeload dump. In fact, no sophisticated computer model exists to predict mounding (the size and shape of the disposal area) that would result from a large volume of material from multiple dumps. FSEIS, App. B. of App. B, at 18. Yet, RADCAD involves barges having a 4,000 cubic yard capacity. SHB, Bendor et. al, at 8. Thus, Phase I of the project involves 25 bargeloads of contaminated sediment, while Phase II involves approximately 200 bargeloads. The absence of any model capable of predicting two bargeload dumps, let alone 25 or 200, inter alia led three members of the Shorelines Board to characterize the CAD disposal method as experimental in “significant ways.” Id. at 29. Further evidence of CAD’s experimental nature comes in the form of the Corps’ “successful” use of the technology. Barge-dump capping has succeeded only in 70 foot-deep water, while the Navy’s proposal involves CAD at depths from four to six times greater. In fact, CAD has not been attempted in this country at depths greater than 100 feet. Compl. exh. 4, attachment, at 1. In a 1984 test of CAD in the West Waterway of Elliot Bay, the Corps attempted to place a single barge-load (1,1100 cubic yards) of contaminated sediments in a depression in 70 feet of water. While the Corps terms this test successful, its own monitoring established that a sizeable amount of the barge-load surged out of the depression. Id.; SHB, Bendor et. al, at 30. Furthermore, attempts at mound formation (without capping) in depths approaching those of the RADCAD site proved unsuccessful, apparently because of an inability to accurately place the material at the site. FWS Report, at 1. The Corps acknowledges this “failure”, FSEIS, III-38, which occurred at the Foul Area Disposal (“FAD”) site off New England in water ranging from 160-300 feet deep. Palermo Decl., at 31; Germano Dec!., at 12-17. However, the Corps maintains that the actual cause of the problem was a failure of the barges to dump at the pin-point sites, Germano Deck, at 14. The Corps’ assures the court that due to the WQC’s tight control over dumping operations there “should [be] no problem similar to that observed at the Foul Area site.” Palermo Deck, at 32. Nevertheless, the fact is that FAD, the only attempt of mound formation near RADCAD depths, failed. Finally, RADCAD’s experimental nature is highlighted by the fact that no field data exists for hydraulic cap placement because it has never been attempted. The Corps’ Waterways Experiment Station (“WES”) summarized RADCAD technological considerations, and acknowledged the existence of “gaps or shortfalls in existing technology” with respect to hydraulic capping and the lack of models to determine the “accumulative behavior of multiple dumps.” Palermo, et. al, Evaluation of Dredged Material Disposal Alternatives for US Navy Homeport at Everett, Washington, Tech. Rep. EL-88, U.S. Army Engineer Waterways Experiment Station, at 130 (February, 1988) (“WES Evaluation ”). Even though the WES Evaluation expressly notes that conservative assumptions were used where technological gaps exist, the fact remains that these technological gaps and uncertainties clearly exist, and the EISs create a false sense of security by painting a picture of absolute certainty- While technically feasible, the RADCAD proposal remains experimental in the eyes of a wide variety of knowledgeable observers. See SHB, Bendor et. al, at 29-31; FWS Report; NMFS Letter of April 3, 1987 (compl. exh. 4). Moreover, as the Corps acknowledges, it is impossible to be certain of RADCAD’s success because “there is no way to predict with absolute certainty what will occur during construction.” FSEIS, App.B., at 15. Based on the conclusions of the FWS and the NMFS, the Ninth Circuit found the CAD method to be “experimental” at RADCAD depths and recognized that “substantial” harm would occur to the marine environment should the contaminated spoils not be contained. FOE v. Navy, 841 F.2d at 929. The body of the EISs did not reflect any of the concerns raised by the FWS and NMFS. The resource agencies’ views were only presented in the comments and response section, a placement the government contends is adequate. The court disagrees. The concerns and views of these key agencies should have been contained in the body of the EISs. Opposing views must be reflected at an “appropriate point.” 40 C.F.R. § 1502.9(b). Whether the comments and response section constitutes an “appropriate point” depends, in part, upon whether the body of the EIS discusses the environmental problems raised by opposing views and, in the case of federal agencies, whether the opposition is merely a substantive comment, rather than opposition to the project itself. Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1499, n. 11 (9th Cir.1987) (“ONRC v. Marsh ”). The court concludes that, for two distinct reasons, the resource agencies’ views should have been included in the body of the FEIS and the FSEIS. First, the FWS and NMFS clearly and repeatedly stated strong opposition to the project itself, rather than merely making substantive comments. Second, the body of the FEIS and the FSEIS never discusses the environmental problems raised by any responsible party, let alone the views of these key Federal agencies. In response to the position that the FSEIS should have clearly acknowledged the myriad of uncertainties surrounding the CAD technology and identified the major environmental impact a failure would cause, the Corps maintains that the success of the project is guaranteed by the monitoring requirements set down in Washington’s WQC, and subsequently adopted by the Corps in the ROD issuing the 404 permit. Recently, the Ninth Circuit held that even though a Corps EIS was insufficient under NEPA, the ROD represents the Corps’ final decision, and where the ROD adopted suggestions made by EPA that eliminated the areas of environmental concern, the Corps cured its original failure to obtain information necessary to make a reasoned decision. Half Moon Bay Fishermans’ Marketing Ass’n v. Carlucci, 847 F.2d 1389, 1395-97 (9th Cir.1988). Here, although the Corps issued a detailed ROD in support of its decision to issue a 404 permit, the court concludes that the ROD did not eliminate the areas of environmental concern, and therefore Half Moon Bay does not apply. Although the Corps contends that the WQC requirements adopted in the ROD ensure RADCAD’s success, the monitoring plan does not alter CAD’s experimental nature or remove the possibility of a technological failure. For example, the rejected Memorandum Agreement with the NMFS and the FWS called for a performance criterion requiring 90 per cent of the berm mound to be confined in the area identified by the Navy’s drawings. NMFS Letter of May 21, 1987, at 2 (Compl. exh. 5). Yet, the Corps’ Chief of Engineers rejected this criterion, relying instead on the WQC requirements. Compl. exhs. 6 and 7, at 2-3. The Corps’ total reliance on CAD’s accuracy in placing the sediments in their intended resting place is inconsistent with its refusal to set a 90 per cent placement performance criterion, especially given the Corps’ assurances that no more than 4.5 percent of the material will be released during dredging and disposal. Letter of NMFS, Compl. exh. 7, at 3. If, as the Chief Engineer has stated, it would be difficult to measure whether 90 per cent of the mound volume was accurately placed, id., the court questions how post-disposal monitoring could possible determine the success of the placement technology and insure against environmental injury. Moreover, the WQC performance criteria, relied upon so heavily by the Corps, will declare Phase I placement a success even if the contaminated material spread to 250 per cent of the area specified in the FSEIS. Compl. exh. 7, at 6. The Corps also contends that placement of the berm material is a confirmatory test of placement technology. In fact, the berm stage is not a pass/fail test for Phase I, which would proceed “unless no discernible berm whatsoever is detected.” SHB, Ben-dor et al., at 9-10. The court acknowledges that having the much smaller Phase I serve as a pass/fail test for Phase II would lessen the harm to the environment should Phase I fail. The record, however, continues to lack any analysis of the environmental consequences of a failure of Phase I or Phase II. In summary, the court concludes that the Corps’ and the Navy’s EISs (1) failed to acknowledge the degree of uncertainty concerning the CAD technology and its use at RADCAD depths; (2) failed to appropriately reveal the views of the federal resource agencies on the subject, and (3) failed to identify the “major” environmental consequences of a technology failure. NEPA requires an EIS to expose scientific uncertainty concerning safety and environmental risk of a proposed action. Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1479 (9th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984) (“SOCATS ”). Moreover, an EIS “must be particularly thorough when the environmental consequences of federal action are great.” Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1026 (9th Cir.1980). Although an EIS “need not discuss remote and highly speculative consequences,” id., the court concludes, along with the Ninth Circuit, FWS, NMFS, and three members of the Shorelines Board, that the RADCAD project is experimental and fraught with uncertainties. In such a case, the “major” environmental consequences that would result from a failure cannot be said to be “remote and highly speculative.” Because the EIS text failed to disclose and discuss crucial information concerning technological uncertainty and what major environmental impact would occur if the RADCAD technology failed, the Corps and the Navy could not possibly have satisfied NEPA’s requirement of informed decisionmaking and informed public participation. Half Moon Bay, 847 F.2d at 1394-95; Methow Valley, 833 F.2d at 818; see also Baltimore Gas & Electric Co., 462 U.S. at 97-98, 103 S.Ct. at 2252 (NEPA requires agency to take hard look at environmental consequences and disclose the environmental impact of its action to the public); ONRC v. Marsh, 832 F.2d at 1497 (when information essential to a reasoned choice is lacking and the cost of obtaining it is not exorbitant, the agency must obtain it and include it in the EIS). 2. Sediment Characterization: How “Clean” is “Clean”? As noted above, the CAD proposal involves using “clean” native sediments to construct the containment berm and to cap contaminated sediments. All told some 2.3 million cubic yards of “clean” native sediments will be dumped or hydraulically pumped into Port Gardner Bay. Because this massive volume of “clean” sediments will remain unconfined, it is “critical” that the berm and capping material “be, in fact Clean, and not have chemical concentrations likely to cause acute or chronic long-term toxicity to marine life.” SHB, Bendor et al, at 19 (emphasis in original). FOE argues that, in characterizing the sediments as clean, the government violated NEPA in two different ways: (1) it lacked critical information necessary for it to make an informed, reasoned decision; and (2) its own data contradicted its conclusion that the native sediments posed no environmental risk. After careful review and study of the administrative record, the various declarations filed by the parties, and the recently published study commissioned by EPA, PTI & Tetra Tech, Everett Harbor Action Program: Analysis of Toxic Problem Areas (June, 1988) {“Tetra Tech/PTI Report ”), the court finds as follows: (1) the sediment characterization tests, conducted by the Navy and the Corps, at best proved inconclusive and recommended further testing, and may in fact directly contradict the EIS and ROD characterization of the native sediments as “clean”; and (2) the tests themselves were insufficient to assess the environmental risk posed by the “clean” sediments. To determine whether use of native sediments for cap and berm material posed environmental risks, the Corps and the Navy employed Battelle Northwest Laboratories to conduct a three-phased “sediment characterization” study (“Battelle I, II, and III”). Characterization of native sediment as “clean” involved both chemical and biological tests. Crecelius Decl. ¶ 6. a. Chemical Analysis of Native Sediment Both Battelle I and Battelle II conducted chemical analysis. Battelle I chemical analysis focused particularly on specific trace metals, pesticides, polynuclear aromatic hydrocarbons (“PAHs”), and chlorinated hydrocarbons (particularly PCBs), each of which had been identified as present in the East Waterway by pr