Full opinion text
MEMORANDUM AND ORDER CROW, District Judge. On February 8, 1993, the plaintiffs commenced this action for declaratory and in-junctive relief, challenging the decision of the defendant, the Federal Highway Administration (FHWA), to participate in the construction of the proposed South Lawrence Traffic-way (SLT) in Douglas County, Kansas. The plaintiffs contend that the route selected for the SLT involves the taking of public parkland without a determination that the parkland is not significant or that there is no reasonable and prudent alternative to such taking. The plaintiffs also challenge the decision by the defendant to approve a Final Environmental Impact Statement (FEIS) that they contend does not consider all of the reasonable alternatives to the project and is otherwise defective. The plaintiffs’ action arises under and alleges violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., the Department of Transportation Act of 1966, 49 U.S.C. § 301, et seq., the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, et seq., the Clean Water Act, 33 U.S.C. § 1251, et seq., Executive Order 11990, the Administrative Procedures Act, 5 U.S.C. § 553, et seq., and the regulations issued pursuant to those statutes. In Counts I and II of their complaint, the plaintiffs challenge the FHWA’s determination that 23 U.S.C. § 138 and 49 U.S.C. § 303(c) and its implementing regulations are not applicable to the newly created Lawrence Prairie Park. Counts III through VIII challenge the adequacy of the Final Environmental Impact Statement and the Record of Decision issued by the FHWA for the SLT. Count IX challenges the FHWA’s determination that there was no conflict of interest in violation of 40 C.F.R. § 1506.5(c) in the preparation of the FEIS. In short, the plaintiffs seek an order halting any and all acquisition of right-of-way and all construction activity related to the proposed SLT. The plaintiffs request that such an injunctive order remain in effect until the defendant adopts a route for the pi’oposed SLT that does not require the taking of protected parkland and until the defendant prepares and approves a supplementary Environmental Impact Statement (EIS) which examines the effect of the proposed route and all other reasonable alternatives on protected park land and protected wetlands. This case comes before the court upon the FHWA’s motion for summary judgment (Dk. 41) and upon the plaintiffs’ cross-motion for summary judgment (Dk. 43). Each side has responded to their opposition’s motion, and each side has filed a reply brief. Decocted to its simplest form, it is the FHWA’s position that the FEIS evaluating the need for and the impact of the SLT was made in compliance with all relevant rules and regulations and that the FEIS is amply supported by the materials contained in the voluminous Administrative Record. The FHWA contends that its approval of the FEIS was neither arbitrary nor capricious. In stark contrast, the plaintiffs contend that the FHWA’s approval of the FEIS is not only contrary to the letter and spirit of the relevant laws and regulations, but also that the FEIS approved by the FHWA is based upon spurious assumptions and data wholly defying common sense. The plaintiffs’ position is perhaps summarized by this quote from their reply brief: To summarize the argument of the plaintiffs, albeit somewhat colloquially, there are holes in this FEIS wide enough to drive a truck through. The plaintiffs urge the Court to find, on the other hand, that these holes are too wide to build a highway through. Plaintiffs’ reply brief at 22-23. Overview of Relevant Statutes and Regulations In order to better understand the respective positions of the parties, the court will provide a brief overview of the relevant statutes and regulations implicated in this case: National Environmental Policy Act (NEPA) In the National Environmental Policy Act of 1969, Congress specifically “recogniz[ed] the profound impact of man’s activity on the interrelations of all components of the natural environment,” and resolved “to recreate and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. § 4331. “These sweeping goals have inspired some commentators to call NEPA an environmentalist Magna Carta.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193 (D.C.Cir.), cert. denied, — U.S. -, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). “It is “well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.’” Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir.1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989)). “NEPA commands agencies to imbue their decisionmaking, through the use of certain procedures, with our country's commitment to environmental salubrity.” Citizens Against Burlington, 938 F.2d at 193-194. The federal court’s review of agencies’ decisions is circumscribed by the highly deferential abuse of discretion standard of review: Just as NEPA is not a green Magna Carta, federal judges are not the barons at Runnymede. Because the statute directs agencies only to look hard at the environmental effects of their decisions, and not to take one type of action or another, federal judges correspondingly enforce the statute by ensuring that agencies comply with NEPA’s procedures, and not by trying to coax agency decisionmakers to reach certain results. See Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). As the Supreme Court has warned, “once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot ‘ “interject itself within the area of discretion of the executive as to the choice of the action to be taken.” ’ ” Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) (per curiam) (citation omitted); see Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976) (“Neither [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.”). Citizens Against Burlington, 938 F.2d at 194. “Under NEPA, ‘major Federal actions significantly affecting the quality of the human environment’ must be preceded by an environmental impact statement or EIS. 42 U.S.C. 4332(2)(C).” Holy Cross, 960 F.2d at 1521 (citations omitted). The EIS requirement serves two important functions: It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. NEPA specifies five specific issues which must be addressed in the EIS: (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. 4332(2)(C). Thus, “through a set of ‘action-forcing’ procedures” NEPA requires agencies to take a “hard look” at the environmental consequences of proposed actions. Robertson, 490 U.S. at 350 [109 S.Ct. at 1846], Holy Cross, 960 F.2d at 1521. Executive Order 11990 In 1977, President Carter issued executive Order 11990 pursuant to and in furtherance of NEPA. Harris v. United States, 19 F.3d 1090, 1093 (5th Cir.1994). This executive order has the force and effect of a statute enacted by Congress. Id. Executive Order 11990 requires, inter alia, that all federal agencies shall take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency’s responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities; and (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities. Exec. Order No. 11990, § 1(a), 42 Fed.Reg. 26,961 (1977), reprinted as amended in 42 U.S.C. § 4321 note (1988). Clean Water Act (CWA) “In 1972 Congress enacted the Clean Water Act ‘to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’ 33 U.S.C. § 1251(a).” Sierra Club v. Lujan, 972 F.2d 312, 313 (10th Cir.1992). Under 33 U.S.C. § 1311 of the CWA, it is illegal to discharge pollutants into United States waters unless authorized by specific sections of the Act. Sierra Club, 972 F.2d at 313. Under the CWA, dredge or fill material may not be discharged without obtaining from the Army Corps of Engineers (Corps) a permit, commonly known as a section 404 permit. 33 U.S.C. § 1344(a); Holy Cross, 960 F.2d at 1524. “ ‘Waters of the United States’ includes wetlands.” Id. (citations omitted). “The Corps has a particular duty under the CWA to protect wetlands.” Id. As part of the permit process, the Corps is obligated to conduct a “public interest review.” 33 C.F.R. § 320.4(a). In addition to complying with its own regulations, the Corps, in issuing section 404 permits, must also comply with guidelines developed in conjunction with the EPA, known as 404(b)(1) Guidelines. 40 C.F.R. Part 230. Finally, 33 C.F.R. Part 230 contains regulations for implementation of NEPA by the Corps, which are intended to supplement the CEQ regulations implementing NEPA. 40 C.F.R. § 1500, et seq. The EPA may veto the issuance of a permit which will have an “unacceptable adverse effect” on, inter alia, a wetland ecosystem. See section 404(c) of the CWA, 33 U.S.C. § 1344(c); 40 C.F.R. § 231.1(a), 231.2(e). Id. at 1524-1525 (footnotes omitted). Section 4(f) of the Department of Transportation Act Section 4(f) of the Transportation Act, 49 U.S.C. § 303, provides that it is United States policy “that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.” 49 U.S.C. § 303(a). Title 49, section 303(c) states: The Secretary [of Transportation] may approve a transportation program or project ... requiring the use of publicly owned land of a public park [or] recreation area ... only if— (1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park [or] recreation area ... resulting from such use. The implementing provisions of this section are found at 23 C.F.R. § 771.135. “A virtually identical provision is contained in the Federal-Aid Highways Act, 23 U.S.C. § 138.” Committee to Preserve Boomer Lake Park v. DOT, 4 F.3d 1543, 1549 (10th Cir.1993). Standard of Review “The [APA] provides that ‘[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof,’ 5 U.S.C. § 702, and [the Supreme Court has] read the Act as embodying a ‘basic presumption of judicial review.’ ” Mount Evans Co. v. Madigan, 14 F.3d 1444, 1449 (10th Cir.1994) (quoting Lincoln v. Vigil, — U.S. -, -, 113 S.Ct. 2024, 2030, 124 L.Ed.2d 101 (1993) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967))). Actions of agencies reviewed under the APA shall not be overturned unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Holy Cross, 960 F.2d at 1521 (to determine whether a decision to grant a section 404 permit violated NEPA and/or the CWA, court must review “permitting decision under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A) to determine whether it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”); Conservation Law Foundation of New England, Inc. v. Federal Highway Administration, 24 F.3d 1465, 1471 (1st Cir.1994) (administrative actions taken under NEPA, § 404 of CWA, § 4(f) of DOTA and § 176 of the CAA are subject to a highly deferential abuse of discretion standard of review). The court examines whether the agency based its decision on consideration of relevant factors, whether there has been clear error of judgment, and whether the agency complied with procedural requirements. Citizens to Preserve Overton Park [v. Volpe], 401 U.S. [402] at 416, [91 S.Ct. 814, 823-24, 28 L.Ed.2d 136]. While the court is to make a “searching and careful” inquiry into the facts, it is not to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, 401 U.S. at 416, [91 S.Ct. at 823-24]. Judicial review focuses on the administrative record existing before the agency. Camp v. Pitts, 411 U.S. 138, 142, [93 S.Ct. 1241, 1244, 36 L.Ed.2d 106] (1973). State of Kan., ex rel. Todd v. United States, 791 F.Supp. 1491, 1494 (D.Kan.1992), aff'd, 995 F.2d 1505 (10th Cir.1993). Standards for Summary Judgment A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. “Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment.” Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “[Tjhere are cases where the evidence is so weak that the case does not raise a genuine issue of fact.” Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988). The movant’s burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to “point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). “A movant is not required to provide evidence negating an opponent’s claim.” Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted). If the moving party meets its burden, then it becomes the nonmoving party’s burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (“If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party’s case.”). “Unsubstantiated allegations carry no probative weight in summary judgment proceedings.” Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings); see also Vega v. Kodak Caribbean, Ltd. 3 F.3d 476, 479 (1st Cir.1993) (“Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice.”). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273. More than a “disfavored procedural shortcut,” summary judgment is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.’ Fed.R.Civ.P. 1.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In general, when the court is presented with cross-motions for summary judgment, the court attempts to synthesize the uncon-troverted facts into a single account that fairly and accurately states the uncontrovert-ed facts so as to make the court’s opinion clear and concise. In addition, consolidating the uncontroverted facts avoids unnecessary duplicity and hypothetically conserves the court’s limited resources. In this case, the court’s attempt to consolidate the uncontroverted facts into a single account has been an unduly difficult task as the plaintiffs, in responding to the defendant’s motion for summary judgment and in setting forth their statement of uncon-troverted facts in their motion for summary judgment, have failed to comply with D.Kan. Rule 206. D.Kan.Rule 206 provides in pertinent part: (c) Motions for Summary Judgment. The memorandum or brief in support of a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies. A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies, and if applicable, shall state the number of movant’s fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically eon-troverted by the statement of the opposing party. The statements required by this subsection shall be in addition to the material otherwise required by these rules and the Federal Rules of Civil Procedure. The plaintiffs’ response to the defendant’s motion for summary judgment, while challenging some of the defendant’s statements of uncontroverted facts, is generally not supported by direct citation to the Administrative Record. The defendant’s statement of facts are essentially uncontroverted. Under the local rule, the court deems the defendant’s statement of uncontroverted facts as admitted. In their motion for summary judgment, the plaintiffs do incorporate by reference the stipulated facts to be incorporated into the pretrial order. However, as to all remaining factual assertions, the plaintiffs simply intersperse the “Argument” section of their memorandum with references to the Administrative Record. As this court stated in Money v. Great Bend Packing Co., Inc., 783 F.Supp. 563, 567 (D.Kan.1992), “D.Kan. Rule 206 serves several valuable purposes, including reducing the burden placed upon the court in determining motions for summary judgment.” In their reply brief, the plaintiffs concede that their memorandum does not comply with D.Kan.Rule 206(c), but argue: Nonetheless, the fact that these factual assertions were made in the context of a motion for summary judgment should have been sufficient to put the defendant on notice that these were also “material facts as to which [the plaintiffs contend that] no genuine issue exists.” The plaintiffs note that these additional assertions were, with a few exceptions, based on the administrative record filed by the defendant. Plaintiffs’ reply brief at 2. The plaintiffs also argue that [i]n the interest of a full and final consideration of this matter on its merits, the plaintiffs respectfully request that the court accept the above factual statements, which were set forth in the body of the Plaintiffs’ Memorandum, as if they were set forth in a separate section at the beginning of the memorandum as required by D.Kan.Rule 206(c). Plaintiffs’ reply brief at 10-11. Undoubtedly, the manner in which the plaintiffs have presented their motion for summary judgment has placed an incremental burden on both the court and the defendant. It should not be the court’s burden to sift through the plaintiffs’ brief and then scour the Administrative Record in an attempt to locate those portions referred to by the plaintiffs. See D.Kan.Rule 206. In regard to the plaintiffs’ statement of uncontro-verted facts, the court concludes that the plaintiffs’ failure to comply with D.Kan.Rule 206 is essentially fatal to their motion for summary judgment. In any event, the court, having considered all of the plaintiffs’ arguments, concludes that the defendant is nevertheless entitled to summary judgment. Uncontroverted Facts GENERAL OVERVIEW 1. The parties stipulate to the authenticity of the documents in the Administrative Record. 2. The SLT in Lawrence, Douglas County, Kansas, is a Federal-aid highway project. 3. The Federal-aid Highway Program is a reimbursement program whereby the FHWA reimburses the Kansas Department of Transportation (KDOT) for eligible costs on Federal-aid highway projects in the State of Kansas. 4. KDOT enters into contracts with construction companies to perform most construction activities on Federal-aid projects in the State of Kansas. FHWA has not performed construction on the SLT, and will not perform construction on the SLT. 5. KDOT, Kansas cities, or Kansas counties secure easements or obtain right-of-way for Federal-aid projects. FHWA has not acquired right-of-way for the SLT, and will not acquire right-of-way for the SLT. FHWA’s right-of-way acquisition authority is limited to the situations noted in 23 C.F.R. § 712, Subpart E, which are not applicable to the SLT. 6. Consideration of a southern bypass highway project in Lawrence began on the local level as early as 1964 when it was one option explored for the possible relocation of US-69, a major north/south highway through the city, away from its location on Iowa Street. The Lawrence Area Transportation Study — 196k- published in June, 1967, suggested a southern bypass around the City of Lawrence. 7. The Lawrence Area Transportation Study — 1971, prepared for the City of Lawrence in cooperation with the Kansas State Highway Commission and FHWA, further studied the issue of a southern bypass. 8. The 1971 study provided a number of route alternatives. Of these alternatives, a recommended route for the south bypass was located south of the Wakarusa River, “to avoid encroachment on the Baker University Wetlands Research Area, Haskell Indian Junior College, or both properties.” 9. The 1971 study further provided that, [t]he west bypass which starts at US-59 and goes to US-40 was included in the recommended plan but the demand for this facility was not sufficient to warrant construction during this time period, but this is part of the ultimate transportation plan for the study area. 10. In January, 1974, KDOT prepared a Reconnaissance Resort for the relocation of US-69 on the east side of Lawrence. 11. A Draft Environmental Impact Statement (DEIS) for the easterly bypass of Lawrence was circulated in September of 1974, but due to the lack of interest and opposition to the project, no FEIS was prepared. 12. Neither the south of the Wakarusa alternative nor the eastern bypass alternatives were advanced as Federal-aid projects when a Draft Environmental Impact Statement (DEIS) for the easterly bypass was circulated in 1974. These alternatives were discussed, however, in the SLT FEIS as background. 18. The first direct FHWA involvement on the SLT project occurred at two meetings held on April 11, 1986, between representatives of FHWA, KDOT, Douglas County (the County), the City of Lawrence (the City), and Howard Needles Tammen & Bergendoff (HNTB), an engineering firm retained by the City and County to prepare environmental documentation for the project. 14. At two meetings held on April 11, 1986, FHWA informed the City of Lawrence (the City), Douglas County (the County), KDOT, and Howard Needles Tammen & Bergendoff (HNTB) that it would be necessary to prepare an Environmental Impact Statement (EIS) in accordance with all applicable Federal laws and regulations for Federal funding to be available for the project. 15. A follow-up meeting was held on May 9,1986, at which requirements for the preparation of an EIS were discussed. 16. A Notice of Intent to Prepare an EIS for the proposed SLT was published in the Federal Register on June 23, 1986. The notice stated that the project corridor “runs east — west near 31st Street in South Lawrence from K-10 to the Clinton Dam and north — south from Clinton Dam to the Kansas Turnpike.” The notice also stated that several alternatives would be considered including no building and that various alignments within the corridor would be studied. 17. Federal funding was provided for part of the SLT by Section 149(a)(72) of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA). Congress directed the Secretary of Transportation to carry out a demonstration project in Douglas County, Kansas, to demonstrate methods of reducing traffic congestion and facilitating the usage by motorists on the Interstate System of recreational facilities by construction of a north-south limited access trafficway of approximately 4 miles in length which will connect an east-west interstate route to a reservoir and a university research park. (AR Ex 15 ¶ (a)(72). Section 149(k) of the same Act authorized the Secretary, to carry out, in Lawrence, Kansas, a bypass project which is a model for its cost-sharing arrangement and economic development goals. (AR Ex 15). 18. Section 1 of the SLT satisfies the requirements of Sections 149(a)(72) and 149(k) of the STURAA of 1987. 19. In 1988, Section 345 of the Department of Transportation and Related Agencies Appropriations Act of 1988 amended Section 149(a)(72) of the STURAA of 1987 by describing the project as: a limited access road of approximately 14 miles in length which, at its western terminus, will provide access from an east-west Interstate highway route to a reservoir and a university research park, will proceed easterly around the southern portion of the City of Lawrence and, at its eastern terminus, will provide access to a business park and a limited access east-west State highway. 20. The SLT as described in the FEIS and the Record of Decision (ROD) satisfies the requirements of Section 345 of the Department of Transportation and Related Agencies Appropriations Act of 1989. 21. The DEIS was prepared and released to Federal, State and local agencies and to the public for comment on February 19, 1987. Several public viewing stations for the DEIS were established in Lawrence. In addition, copies were distributed to Baker University, Haskell Indian Junior College and Kansas University. 22. Numerous comments to the DEIS were received from the public and from local, State, and Federal resource agencies. 23. EPA comments on the project were made available to the public on June 5, 1987. EPA expressed concern about the impact on wetlands and suggested that realignments be made and that mitigation plans be included in the final EIS. 24. On August 5,1987, FHWA authorized KDOT to proceed with preliminary right-of-way and engineering activities necessary to advance the SLT project through the location stage approval. This authorization related only to the portion of the trafficway authorized by the STURAA of 1987. 25. In 1987 a Functional Assessment of the 31st Street Wetlands was conducted by KDOT to determine the significance of the wetlands to be impacted by the SLT. (AR Ex 25). 26. During the preparation of the EIS and the related environmental studies, numerous project modifications and extensive mitigation commitments were made in response to comments received from the public and from State and Federal agencies. For example, the project was realigned to avoid impacts to the Elkins Prairie. 27. A Public Information Meeting to update interested parties on project development was held on April 6,1988. Written and oral comments from the public were accepted. 28. No new issues were raised at the Public Information Meeting on April 11, 1988. 29. Throughout progress of the project, mitigation measures to minimize environmental harm was the topic of discussions between FHWA, the City, County, KDOT, and other federal and state agencies. 30. The FEIS was approved by FHWA and released to the public on January 4, 1990. 31. The ROD was issued on June 5, 1990. 32. FHWA has been intimately involved in the environmental process for the SLT and in all environmental issues including those raised by this lawsuit since the April 11, 1986, meeting at which the city, county and state were advised by FHWA that it would be necessary to prepare an EIS. APPLICABILITY OF SECTION 4(f) TO THE NEWLY CREATED LAWRENCE PRAIRIE PARK (COUNTS I AND II OF PLAINTIFF’S COMPLAINT) 33. In 1991, after approval of the ROD, the City of Lawrence acquired a privately owned piece of property, Mary’s Lake, to be incorporated into a City Park on the lake’s northern boundary, the Lawrence Prairie Park. The south side of the Mary’s Lake property is adjacent to the SLT. City officials acquired the property with the intent that a portion of the south side would be used for the SLT. 34. The FEIS and ROD showed the SLT passing along the south side of the Mary’s Lake property and taking a strip of land for right-of-way from its south side. 35. The City acquired the Mary’s Lake property in 1991 and deeded the south 100 feet to the County to be used as right-of-way for the SLT in June, 1992. Since that time, a minor project change has resulted in complete avoidance of use of any land from the Mary’s Lake property including the 100 feet deeded to the county. 36. In 1990, when the ROD for the SLT was issued, the FHWA determined that Section 4(f) did not apply to the Mary’s Lake property because Mary’s Lake was in private ownership. 37. The conversion of the privately owned Mary’s Lake property to publicly owned parkland occurred after the issuance of the ROD for the SLT. 38. FHWA regulations provide that there is no constructive use of Section 4(f) property from possible proximity impacts resulting from a project, when: 1) an applicant’s adoption of a project location or the Administration approval of a FEIS established the location for a proposed transportation project before the designation, establishment, or change in the significance of the resource; or 2) the public park and transportation facility are jointly planned. 39. Lawrence Prairie and the SLT were jointly planned by the City of Lawrence and Douglas County. 40. FHWA determined the SLT will result in no use of the Lawrence Prairie Park including Mary’s Lake within the meaning of Section 4(f). ADEQUACY OF THE FEIS (COUNTS III THROUGH VIII OF PLAINTIFFS’ COMPLAINT) 41. The FEIS discusses the following five topics that are required by NEPA, 42 U.S.C. § 4332(2)(C): (1) The environmental impacts of the proposed action; (2) Any adverse environmental effects that cannot be avoided should the proposal be implemented; (3) Alternatives to the proposed action; (4) The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (5) Any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. 42. The FEIS discusses all reasonable alternatives to the proposed action in detail. A study review team ranked all reasonable alternatives based upon twelve evaluation factors that were assigned a weight corresponding to their relative importance. 43. The FEIS does not consider the alignment south of the Wakarusa River for the southern segment of the SLT because such an alignment is not a reasonable alternative to the SLT. A route south of the Wakarusa River involves many of the same environmental concerns associated with the route north of the Wakarusa River (wetlands and frog habitat impacts), requires an additional one mile of travel, and requires two additional river crossings. Its cost is higher than the preferred route described in the FEIS. 44. The FEIS also does not consider an eastern route for routing through traffic away from 23rd Street in detail. An eastern alignment would not relieve traffic congestion on 23rd Street and, therefore, is not a reasonable alternative to the SLT. 45. The eastern bypass is a separate subject of study and is not an element of the SLT project. The eastern bypass concept was addressed in a 1973 Reconnaissance Report and in a 1974 DEIS prepared by the State Highway Commission of Kansas. The eastern bypass was dropped from further consideration in the mid-1970s when it was determined that construction costs would be extremely high and public support for the project was absent. 46. Public transportation was briefly discussed in the DEIS and in the FEIS. Improved public transportation could provide some relief for internal-internal trips, but would not divert a significant number of vehicles that enter or pass through the Lawrence area. 47. Public transportation is not a reasonable alternative to the SLT. 48. Forecasts of future traffic on the existing street and highway network, supported by recent growth trends, show that the current network is incapable of handling future traffic volumes at an acceptable level of service. Reliance on the current network is not a reasonable alternative to the SLT. 49. KDOT and FHWA reviewed the future traffic projections prepared by HNTB for the SLT and determined the conclusions reached by HNTB were supportable. 50. With certain intersection and mid-block improvements (possibly consisting of signals, widening, etc.) that are within the City’s ability to finance, 23rd Street could be improved to serve 26,000 vehicles per day (VPD) with tolerable peak hour delay. Any growth of demand volume beyond 26,000 vpd must be diverted to alternate routes. A Peak Hour Level Of Service (LOS) F is predicted by the year 2010 at 23rd Street and Iowa Street, and at 23rd Street and Louisiana, due to traffic demand on 23rd Street of 32,000 to 35,000 vpd without the trafficway. LOS F is the lowest level of service and is an unacceptable level of service to most drivers. 51. The FEIS demonstrates that the SLT will help meet the need to relieve peak-hour traffic congestion at 23rd and Iowa Streets. The existing street network (1980-1982) Level of Service (LOS) in the 23rd Street and Iowa area is currently LOS-C. The estimated existing street network projected for the year 2010 Level of Service at 23rd Street and Iowa is LOS-F without the SLT. The estimated proposed LOS with the South Lawrence Trafficway for the year 2010 is LOS-D at 23rd Street and LOS-C at Iowa Street. 52. The FEIS considers the cumulative effect of the SLT on protected wetlands resulting from the construction of the project and from the indirect effects of the proposed project. Cumulative and indirect effects and major impacts and mitigation measures were considered. 53. FHWA has extensively considered the effect of the SLT on wetlands. All information necessary for the issuance of a Section 404 Permit by the United States Corps of Engineers has been provided and extensive steps have been taken to minimize the impact of the SLT on jurisdictional wetlands. 54. The SLT will not take any property from the Baker Wetlands. The wetlands that have been determined to be impacted by the SLT are located on the existing 31st Street right-of-way between the property line of the Baker Wetlands and 31st Street and in the ditch along both sides of 31st Street. The project in the vicinity of the Baker Wetlands is designed with a closed drainage system and reduced median width. 55. The Corps of Army Engineers, pursuant to their responsibility in the Section 404 permit process, performed a Wetlands Assessment and determined that the area between existing 31st Street and the existing levee of the Haskell (Baker) Wetlands, the property line of the Baker Wetlands, is a wetland subject to the 404 permitting process. The Environmental Section of KDOT performed a wetlands functional assessment using the FHWA endorsed “Adamus methodology” on the area to be impacted by the SLT. The project had impacts of sufficient magnitude to warrant mitigation. The mitigation plan is described in the FEIS. In brief, the mitigation plan apparently intends to transform certain areas into wetlands by the controlled flooding of water into artificial ponds. In addition to the use of pumping facilities to maintain the water level in the pools, the mitigation plan relies on other measures to create a wetland area similar to the impacted wetland area. 56. The Adamus Method used to perform the wetlands functional assessment provides a procedure for converting typical field observations of a wetland into preliminary statements regarding the wetlands’ probable values for natural functions of wetlands in general. 57. The Adamus Method includes three separate procedures. Procedure I is known as a threshold analysis, which investigates how the wetlands function in ecosystems. It is not meant to be definitive of the intricate functions of wetlands; however, broad functions can be more easily understood by the public. Procedure I must be completed before Procedure II or Procedure III can be done. Procedure II is a comparative analysis for deciding the relative importance of two or more wetlands with similar value ratings. Procedure III is an analysis of mitigation options and includes parameters of economic and function costs of mitigation alternatives. 58. In May, 1988, FHWA became aware of other applications to the Corps of Army Engineers for Section 404 Permits in the project area by various individuals and expressed concern about the cumulative impacts from the Section 404 Permits. 59. The Corps of Engineers considered the cumulative effects of the requested 404 permits and based the granting of the permits on appropriate mitigation. 60. The FEIS provides mitigation procedures to assure that there will be no net loss of wetlands in accordance with Executive Order 11990. The effectiveness of proposed wetlands mitigation techniques has been thoroughly evaluated by FHWA. 61. Mitigation of the 11.89 acres that will be impacted will be accomplished at a triangular area north of 35th Street and east of Haskell. The construction of a water level control device in this area has the potential of flooding 15.3 acres in the off-site location. This creation of wetlands will result in a net gain of 3.41 acres of wetlands, not a net loss of wetlands. 62. The Corps of Engineers does not consider agency 404 permit applications until completion of the environmental process. In accordance with this procedure the Section 404 Permit for the SLT was issued by the Corps on April 22, 1993. 63. FHWA has been particularly concerned with the effects of the SLT on the habitat of the Northern Crawfish Frog in the development of this project. 64. Impacts to the Northern Crawfish Frog habitat were considered to be sufficient by the Kansas Department of Wildlife and Parks to require habitat mitigation as a part of their permitting process. The SLT will impact 11.89 acres of Northern Crawfish Frog habitat. 65. The FEIS discusses the impacts on the habitat of the Northern Crawfish Frog and the proposed mitigation for the loss of frog habitat. 66. The SLT will be coincident with 31st Street, from Haskell to Louisiana Streets, to minimize intrusion into both potential habitat and wetlands south of existing 31st Street. 67. A reduced median -width and an enclosed drainage system are incorporated into this design as mitigation measures to limit the area of intrusion to the Northern Craw-fish Frog habitat. 68. In addition to the closed drainage system and reduced median width, a habitat mitigation site located in a triangular tract of land, adjacent to a tributary of the Wakarusa River, north of 35th Street and east of Has-kell Street will be constructed. 69. The mitigation includes the construction of four breeding pools varying in depth from 6-24 inches that will contain about four surface acres. 70. The habitat mitigation construction also calls for a water control structure to retain rainfall and overflow from the creek during periods of high flow and to release water into the creek as part of the area’s management plan. ALLEGED CONFLICT OF INTEREST OF LANDPLAN ENGINEERING (COUNT IX OF PLAINTIFFS’ COMPLAINT) 71. Landplan Engineering, a subconsul-tant of HNTB, was retained by HNTB to collect some of the data to be used in the preparation of the EIS. 72. According to the contract between HNTB and Landplan Engineering, Landplan Engineering had the primary responsibility for providing information with regard to utility locations; land use and zoning; previous planning, transportation, and route studies; existing right-of-way and property information; anticipated socio-economic impacts; and land use evaluation including impacts on existing land uses, future development patterns, and land values. HNTB and Land-plan Engineering had joint responsibility for establishing study goals and objectives; identifying local issues; preliminary screening of feasible route locations; selection of alternatives for further study; analysis of the preliminary routes for traffic service and preliminary engineering; collection of information for the environmental assessments; preparation of concept strip plans for the selected alternative; preparation of the draft environmental assessment for submittal to KDOT and FHWA; preparation of the final corridor report; participation in regular project meetings; and presentations at the public meetings. HNTB reserved for itself, among other things, the responsibility for identification of all feasible routes, the selection of the preferred route, and making consultant recommendations. 73. The County and City actually made the decisions regarding selection of the preferred alignment of the SLT. Ultimately Landplan Engineering did not perform that portion of the agreement that made it jointly responsible with HNTB for the preparation of the draft environmental assessment (EA) when it became apparent that an EIS would be required. For this same reason, Land-plan Engineering performed none of the tasks identified on page 4 of Attachment A of its agreement with HNTB. 74. The contract between HNTB and Landplan Engineering was for a period of six months commencing in September of 1985. The initial contract specified the study corridor north of the Wakarusa River that was ultimately defined in the STURAA of 1987 when the SLT became a Demonstration Project. 75. The only additional agreement between HNTB and Landplan Engineering was for Landplan Engineering’s attendance at study team meetings between June 1, 1986, and August 31, 1986. Landplan Engineering was paid an additional $350 for attendance at those meetings. Landplan Engineering attended the later public information meeting, but did not bill HNTB for its time. 76. Clark Coan, a Plaintiff herein, first raised the issue of an alleged conflict of interest by Landplan Engineering, P.A. in violation of Council on Environmental Quality (CEQ) regulations, 40 C.F.R. § 1506.5(c), in a letter dated April 22, 1987. 77. FHWA reviewed the allegations of conflict of interest and thoroughly investigated the matter. FHWA determined that there was no conflict of interest and that the provisions of 40 C.F.R. § 1506.5(c) do not apply to subcontractors such as Landplan Engineering. 78. When FHWA first investigated this issue, the inquiry focused on land ownership by Landplan Engineering in the vicinity of the SLT. 79. Landplan Engineering’s list of clients contains approximately 400 names, including the City of Lawrence, Douglas County, Bob Billings, Charles Dunbar, and Bruce Snod-grass. 80. Many of the clients are involved in projects that they hope will benefit from the construction of the SLT. 81. Landplan Engineering is identified among the “Preparers” of the EIS. 82. There were instances in 1987, 1988, and 1989, when Landplan Engineering rendered professional services to clients with property interests in the immediate vicinity of the South Lawrence Trafficway. . 83. FHWA’s later investigation addressed a possible violation of 40 C.F.R. § 1506.5(c) on the part of Landplan Engineering in the preparation of the EIS for the SLT. FHWA indicated to KDOT that Land-plan Engineering should be requested to: 1. Confirm, deny and/or explain the nature of the professional and business relationships alleged; 2. Disclose any additional professional and business relationships with any other parties which may benefit from the project; 3. Explain any property interest Land-plan Engineering may have in land located in the study area; and 4. Clarify that it has no interest in the “outcome of the project” rather than no interest in the “outcome of the EIS”. 84. FHWA further asked KDOT to request that HNTB evaluate the information and offer opinions with regard to whether the business and professional interests of Landplan Engineering had any effect on the objectivity of the EIS. 85. The October 10, 1989, response from Landplan Engineering took the position that the CEQ conflict of interest regulations do not apply since Landplan Engineering is a subcontractor. Despite its reservations about the applicability of the regulations, Landplan Engineering provided information in response to FHWA’s request and filed a disclosure statement. 86. In its evaluation of the submission on behalf of HNTB, Alfred J. Horn, P.E., HNTB Project Manager, pointed out that the study team, made up of representatives of the County (usually three representatives), the City (usually four representatives), KDOT, HNTB, and Landplan Engineering, ratified study findings and made all major decisions. 87. Landplan Engineering assisted HNTB in identifying all reasonable and feasible alignments for the roadway within the study corridor, assisted in the preparation of the DEIS, and assisted HNTB and the County in conducting the corridor public hearing and the update meeting. 88. Landplan Engineering collected data and provided knowledge of existing land use and property values, but it had no role in identifying all feasible routes, which HNTB reserved for itself. Landplan Engineering did not participate in the selection of alternative traffic routes. 89. It was FHWA’s analysis that the questions presented by the conflict of interest allegation were: (1) Is Landplan Engineering subject to the conflict of interest and disclosure requirements of 40 C.F.R. § 1506.-5(c)? (2) If Landplan Engineering is subject to the conflict of interest and disclosure requirements of 40 C.F.R. § 1506.5(c), is there a conflict of interest on the part of Landplan Engineering within the meaning of the regulation? (3) If there is a conflict of interest on the part of Landplan Engineering, is disqualification of Landplan Engineering from participation in the environmental process necessary? (4) If there has been a violation of NEPA, has the integrity of the environmental process been compromised? 90.FHWA’s analysis of the conflict of interest issue found no conflict of interest in violation of 40 C.F.R. § 1506.5(c). Analysis At the outset, the court notes that it has carefully reviewed the briefs of the parties, the relevant law, and the Administrative Record. Although the court has considered all of the arguments advanced by the parties, the court will make no attempt to specifically address each and every argument* advanced by the parties. This memorandum and order will only address the key aspects of the issues raised by the parties. Count I and II The plaintiffs contend that Section 4(f) will be violated by the SLT’s encroachment into an area known as Mary’s Lake. The City of Lawrence is incorporating Mary’s Lake into a new park, the Lawrence Prairie Park. The City of Lawrence acquired Mary’s Lake after the FHWA approved the FEIS and issued the ROD. At the time the FEIS was prepared, Mary’s Lake was a privately owned recreational area or park. The SLT will be located approximately 100 feet from Mary’s Lake. The defendant contends that there will be no violation of Section 4(f) of the DOT Act because the SLT will not actually use any land from the Lawrence Prairie Park; a minor project change avoids actual use of the property. Under 23 C.F.R. 771.135(p)(iv), the defendant contends that there will be no constructive use of the Mary’s Lake property because the park at Mary’s Lake was established after FHWA approved the FEIS for that location. In the alternative, the defendant argues that the SLT and the park have been jointly planned and that there is no constructive use of parkland under such circumstances. The plaintiffs concede that the modifications to the project will avoid any physical taking of the Mary’s Lake property. The plaintiffs contend, however, that the high volume of traffic on the SLT projected in the future will severely impair the use and enjoyment of the public park. Specifically, the plaintiffs argue that the volume of noise generated by traffic on the SLT will destroy the traditional use of Mary’s Lake, namely fishing. The plaintiffs argue that this impairment constitutes a constructive use of the park within the meaning of the FHWA regulations defining constructive use. The plaintiffs concede that under the FHWA regulations (23 C.F.R. 771.-135(p)(5)(ii) and (iv)), no constructive use of Mary’s Lake will occur. However, the plaintiffs ask the court to construe those regulations in such a way that they do not conflict with NEPA, the DOT Act, or the Council on Environmental Quality regulations. The plaintiffs also challenge the defendant’s assertion that the Lawrence Prairie Park and the SLT were jointly planned. In response to these arguments, FHWA argues that it is inappropriate for the plaintiffs to challenge 23 C.F.R. 771.135(p)(5) at this point in the case, as this argument has not been presented at any point during the pendency of this case. FHWA argues that it is inappropriate for the plaintiffs’ to raise this argument in response to its motion for summary judgment. The FHWA further elaborates on its contention that there will be no constructive use of the park and its contention that the park and the SLT were jointly planned by the City of Lawrence. In their reply brief, the plaintiffs contend that they are not asserting a new argument and that in any event, the cases cited by the FHWA concerning raising new arguments are inapplicable as the party’s barred from asserting new arguments in those cases were bound by the pretrial order. The plaintiffs note that a pretrial order has not been entered in this case. The plaintiffs contend that the legal issues contained within their proposed pretrial order are broad enough to encompass the arguments raised in their briefs on these cross-motions for summary judgment. In any event, the plaintiffs contend that they are not arguing that the FHWA regulations are “invalid.” Instead, the plaintiffs contend that they “have merely urged the court not to apply these FHWA regulations in this case in such a way as to contradict the express purpose of NEPA and Section 4(f).” The plaintiffs contend that Mary’s Lake has always been used as a recreational facility and that it is anomalous to interpret 23 C.F.R. § 771.135(p)(5)(iv) “as allowing the degradation of land that has been traditionally used by the public as a park merely because title to the land did not change until after the approval of the FEIS.” The plaintiffs contend that the conflict between the FHWA regulations and Section 4(f) arises “in part because of the unusual status of Mary’s Lake at the time of the preparation of the FEIS, when it was a privately-owned park that was open to public use; all that has really changed in the interim is how the title to the land is recorded at the courthouse.” The plaintiffs urge the court to construe 23 C.F.R. 771.135(p)(5)(ii) and (iv) so that it is in harmony with the legislative history of Section 4(f) and the policy of the United States as set forth in 23 U.S.C. § 138. In their motion for summary judgment, the plaintiffs argue that even if Section 4(f) does not apply to Mary’s Lake, the FEIS should be supplemented. As defined in 23 C.F.R. § 771.135, the term “use” generally includes “constructive use” of land. See 23 C.F.R. § 771.-135(p)(l)(iii). 23 C.F.R. § 771.135(p)(2) defines constructive use: Constructive use occurs when the transportation project does not incorporate land from a section 4(f) resource, but the project’s proximity impacts are so severe that the protected activities, features, or attributes that qualify a resource for protection under section 4(f) are substantially impaired. Substantial impairment occurs only when the protected activities, features, or attributes of the resource are substantially diminished. 23 C.F.R. § 771.135(p)(4) provides: The Administration has reviewed the following situations and determined that a constructive use occurs when: (i) The projected noise level increase attributable to the project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by section 4(f), such as hearing the performances at an outdoor amphitheater, sleeping in the sleeping area of a campground, enjoyment of a historic site where a quiet setting is a generally recognized feature or attribute of the site’s significance, or enjoyment of an urban park where serenity and quiet are significant attributes; (ii) The proximity of the proposed project substantially impairs esthetic features or attributes of a resource protected by section 4(f), where such features or attributes are considered important contributing elements to the value of the resource. Examples of substantial impairment to visual or esthetic qualities would be the location of a proposed transportation facility in such proximity that it obstructs or eliminates the primary views of an architecturally significant historical building, or substantially detracts from the setting of a park or historic site which derives its value in substantial part due to its setting; 23 C.F.R. § 771.135(p)(5), states in pertinent part: The Administration has reviewed the following situations and determined that a constructive use does not occur when: (ii) The projected traffic noise levels of the proposed highway project do not exceed the FHWA noise abatement eritieria (sic) as contained in Table 1, 23 CFR part 772, ... (iv) There are proximity impacts to a section 4(f) resource, but a governmental agency’s right-of-way acquisition, an applicant’s adoption of project location, or the Administration approval of a final environmental document, established the location for a proposed transportation project before the designation, establishment, or change in the significance of the resource. (v) There are impacts to a proposed public park, recreation area, or wildlife refuge, but the proposed transportation project and the resource are concurrently planned or developed. (emphasis added). Under terms of these regulations, it appears that the FHWA has correctly concluded that there is no constructive use of Mary’s Lake for the SLT. First, assuming that the SLT actually violates 23 C.F.R. § 771.135(p)(5)(ii), it is clear that under the express terms of § 771.135(p)(5)(iv) there is no constructive use of Mary’s Lake. As to the plaintiffs’ argument that they are not challenging the validity of § 771.135(p)(5)(iv), but only asking the court to construe it in a manner consistent with the express purposes of NEPA and section 4(f), the only way to “construe” the regulation in a manner favorable to the plaintiffs’ position would be to ignore its plain language. Although the plaintiffs argue that they are not seeking to invalidate the regulation but only to construe it harmoniously with federal laws, this distinction appears to be primarily a play on semantics. In any event, the court will apply the regulation by its express terms. In the alternative, under the uncontrovert-ed facts it appears that there is no constructive use of Mary’s Lake as the SLT and the park were jointly planned. In Sierra Club v. Department of Transportation, 948 F.2d 568 (9th Cir.1991), the Ninth Circuit held that under section 4(f), there is no constructive use of park land where a road and a park are jointly planned. 948 F.2d at 575. The court of appeals explained: Read as a whole, section 4(f) is meant to discourage a new road where the community has already decided a park should exist. Section 4(f) accomplishes this objective by withholding federal funding from such a road. Section 4(f) is not meant to force upon a community, wishing to establish a less than pristine park affected by a road, the choice between a pristine park and a road. A community faced with this choice might well choose not to establish any park, thus frustrating section 4(f)’s goal of preserving the natural beauty of the countryside. 948 F.2d at 574. The court concludes that there was no actual or constructive use of Mary’s Lake. Turning to the plaintiffs contention that the FEIS should be supplemented, the court concludes that the plaintiffs have failed to demonstrate that supplementation is required under the relevant regulations. Under applicable CEQ regulations, agencies [s]hall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. 1502.9(c)(1); see also 33 C.F.R. 230.13(b). Courts review an agency decision regarding the need for a supplemental EIS under the “arbitrary and capricious” standard of the APA, 5 U.S.C. 706(2)(A). Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). This is so because the decision whether to prepare a supplemental EIS “is similar to the decision whether to prepare an EIS in the first instance,” and is highly factual. Id. at 374, 377 [109 S.Ct. at 1859, 1861]; see also Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir.1992); Sierra Club v. Lujan, 949 F.2d 362, 367 (10th Cir.1991). Accordingly, “as long as the Corps’ decision not to supplement the FEISS was not ‘arbitrary and capricious,’ it should not be set aside.” Marsh, 490 U.S. at 377 [109 S.Ct. at 1861]. That standard of review is narrow. See id. at 378 [109 S.Ct. at 1861-62] (“in making the factual inquiry concerning whether an agency decision was ‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ This inquiry must be ‘searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ”) (quoting Citizens to Prese