Full opinion text
MEMORANDUM AND ORDER WOODLOCK, District Judge. In a Record of Decision dated June 9, 1994, the Federal Highway Administration (“FHWA”) approved the design selection made by the Massachusetts Department of Highways (“MHD”) for crossing the Charles River as part of the Central Artery/Tunnel (“CA/T”) Project now underway to upgrade the highway system in the city of Boston. Innumerable design alternatives were considered for the Charles River Crossing. The design selected is known as the Non-River Tunnel (“NRT”) alternative and consists of two parallel bridges. One bridge is a ten-lane cable-stayed mainline bridge; the other is a four-lane girder bridge. The FHWA contends that the NRT is the best overall alternative for the Charles River Crossing because it is safe, environmentally appropriate, and minimizes harm to parkland and historic resources. The FHWA argues in this connection that an extensive ancillary program of parkland creation will improve blighted industrial areas of the lower Charles River. By contrast, the plaintiffs in these consolidated actions contend a crossing that substitutes tunnelling under the Charles River for the girder bridge is a more appropriate alternative because it would reduce impacts on parklands administered by the Metropolitan District Commission (“MDC”). The decision not to select such an alternative, plaintiffs argue, was the consequence of the failure of the FHWA to follow the directives of environmental regulatory schemes enacted by Congress. Before me are cross-motions for summary judgment presenting two basic questions: 1. Whether the FHWA complied with the National Environment Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), in its selection of the NRT alternative; and 2. Whether the NRT alternative complied with the requirements imposed by § 4(f) of the Department of Transportation Act for the protection of park-lands. After providing a chronological overview of the project planning leading to the selection of the NRT and a procedural history of the case, I will address the two questions in order. These questions implicate distinct Congressional approaches. Evaluating compliance with NEPA is essentially a procedural analysis. Congress was not concerned with securing particular substantive decisions through NEPA; rather the intent was to insure that decision-making was fully informed by the relevant environmental considerations. “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1845-46, 104 L.Ed.2d 351 (1989). The focus sharpens and the perspective changes considerably when compliance with § 4(f) is evaluated. There, in addition to certain procedural concerns, Congress sought to establish an important substantive goal: a national policy “that special effort would be made to preserve the natural beauty of the country-side and public park and recreational lands.”” 49 U.S.C. § 303(a). After extended and systematic review of the massive record in this case, I am satisfied that the selection of the NRT was in compliance with both NEPA and § 4(f). Accordingly, I will allow defendants’ motions for summary judgment. I. PROJECT HISTORY The CA/T Project underwent more than a decade of administrative environmental review process. That process is perhaps most easily understood when presented as a chronology focussing on review of the Charles River Crossing evaluations. 1982: FHWA and MHD issued a Draft Environmental Impact Statement and Report (“DEIS/R””) regarding the Project. 1983: The agencies issued a Supplemental DEIS/R (“SDEIS/R””). August 1985: The Final EIS/R for the Project was published (“1985 FEIS/R”). This document identified a preferred alternative for the Charles River Crossing component. This preferred alternative design had four bridges, including two 1-93 mainline truss bridges, one on either side of the existing bridge, which rejoined 1-93 north of the Gilmore Bridge in Charlestown; and ramps connecting the Central Artery to Storrow Drive/Leverett Circle in a tunnel under the North Station commuter rail tracks and along and partly in the south bank of the Charles River. The 1985 FEIS/R included a § 4(f) analysis regarding two identified parkland resource areas: first, the Charles River Basin Reservation along Storrow Drive, including the Charles River upstream of the Old Charles River Dam; and second, Paul Revere Landing Park, on either side of the river next to the New Charles River Dam. The FEIS/R also noted that the Metropolitan District Commission (“MDC”) had plans to acquire land downstream of the old dam to the New Charles River Dam. The Massachusetts Executive Office of Transportation and Construction (“EOTC”) and the MHD agreed to work with the MDC to facilitate park acquisitions in order to mitigate impacts to Paul Revere Landing Park. The document outlined mitigation measures for the land between the old and new dams. Upon review, the Secretary of the Massachusetts Executive Office of Environmental Affairs (“EOEA”) directed that the Charles River Crossing be reexamined. May 1990: A ten-volume DSEIS/R was issued (“1990 DSEIS/R”). It described changes to the project and addressed issues left outstanding in the 1985 FSEIS. In addition, it noted that thirty-one design options had been evaluated as alternatives to the 1985 Charles River Crossing design. The May 1990 DSEIS/R listed three basic crossing design options for further detailed review: 1.Scheme S Modified consisting of tunnels in the vicinity of North Station acting as Storrow Drive/I-93 southbound connections with a main line bridge and viaducts for other connections; 2. Scheme T Modified consisting of tunnels under the North Station area, with a tunnel under the Charles River for connections between Storrow Drive and 1-93 north; 3. Scheme Z Modified consisting of viaducts and bridges for all connections. Alternatives 1 and 2 posed safety deficiencies resulting from the necessity for substantial lane changing maneuvers. In large part because Alternative 3 — Scheme Z — was found not to present these problems, it became the recommended alternative. The § 4(f) evaluation for the 1990 DEIS/R identified two § 4(f) resource areas in addition to those identified in the 1985 FEIS/R: a parcel of land on Nashua Street along the river adjacent to Leverett Circle and a parcel of land on the north bank of the Charles River which the MDC had acquired from the United States General Services Administration (“GSA”) in 1989. It was the MDC’s stated objective to extend the Esplanade along both river banks and complete the bicycle/pedestrian path. Landscaping between important park resources upstream of the Museum of Science and downstream of the North Washington Street bridge was noted, as were MHD commitments regarding open space development in the Central Artery North Area (“CANA”) and its agreement to convey land on the north side of the river to the MDC when the highway projects were completed. November 1990: MHD issued its 11-vol-ume FSEIR, pursuant to requirements of MEPA. January 1991: FWHA issued a 2-volume FSEIS, pursuant to NEPA. A modified Scheme Z was presented in this document as the chosen Proposed Action because it was viewed as the best solution to traffic operations, more constructable, and substantially less disruptive to vehicular and commuter railroad traffic than other alternatives; and because it avoided the negative construction period impacts to the Charles River and parkland associated with the river tunnel alternative. Noting that the designation of § 4(f) properties in the May 1990 DSEIS/R had been questioned in comments suggesting that the surface of the Charles River and certain land affected by the MHD in its development of the separate but related CANA Project should have § 4(f) status, the 1991 FSEIS observed the FHWA had “engaged in extensive coordination with the 4(f) agencies with jurisdiction over” Charles River resources and took note of a November 9, 1990 letter from MDC Commissioner Bhatti regarding the designation of the Charles River and a letter of agreement on the same date between the MDC and the MHD regarding the CANA lands. With respect to the Charles River, Commissioner Bhatti distinguished between the river upstream of the railroad bridge which “the MDC has designated ... for park and recreational purposes” and “the portion of the Charles River surface located downstream of the railroad bridge in this multiple use area [where] the MDC recognize^] ... the primary use of the water surface itself ... will not be recreational.” As to the CANA property, the 1991 FSEIS observed that the primary use would be for transportation purposes and was, in any event, coupled with related mitigation and development plans for which “[n]o one has identified [other] measures ... which would be required to minimize harm to” designated § 4(f) resources. January 2, 1991: The Secretary of the EOEA issued a Certificate approving the 1990-91 FSEIS/R. The Certificate called for the establishment of an advisory Bridge Design Review Committee (“BDRC”) to identify further improvements to Scheme Z. February 1991: EOTC established the BDRC, consisting of representatives from community groups, environmental organizations, business groups, and others, but not including the FHWA, which nevertheless announced support for the design review effort. May 10, 1991: The FHWA approved the 1990-91 FSEIS/R in a Record of Decision (“ROD”). 1991 to 1992: The BDRC analyzed more than 20 alternative designs which the committee narrowed to three options. One of the three alternatives included Committee Improvement Proposal (“CIP”) 8.1 which had a two-lane tunnel under the Charles River for traffic from Storrow Drive to the Tobin Bridge and 1-93 northbound. The MHD then undertook further development of CIP 8.1. September 1992: The MHD filed with the EOEA a Notice of Project Change for the Charles River Crossing, pursuant to MEPA. The crossing design selected was a refinement of CIP 8.1, denominated CIP 8.1D Mod 5. November 1992: The FHWA published a Notice of Intent to issue a SEIS for the Charles River Crossing. November to December 1992: The MHD and the FHWA held scoping sessions for the project. The Army Corps of Engineers (“ACOE”) submitted comments asking MHD and FHWA to investigate options that would have fewer temporary and permanent impacts to water and wetland resources than CIP 8.1D Mod. 5. Moreover, the FWHA expressed concern regarding the operational safety of the proposal because of several sharp curves and rapid changes in elevation which could lead to driver disorientation. As a result, a revised Scope of Work for the DSEIS/R was prepared; it required comparison of a non-river tunnel alternative with a reduced-river tunnel alternative. July 1993: A DSEIS/R was published. It included three new design alternatives and compared them to Scheme Z: 1. Alternative 8.1D Mod 5 included a ten-lane mainline bridge over the Charles River and a single loop ramp in East Cambridge. A tunnel under the river would take eastbound Storrow Drive traffic to 1-93 north and Route 1 north (Tobin Bridge), and also take 1-93 northbound traffic to Route 1 north. The DSEIS/R noted that this alternative had 10,000 feet of tunnel with many severe curves and multiple points where a driver would have to make decisions about where to go. It was projected to have the highest accident rate of the four alternatives being compared. 2. The Reduced-River Tunnel (“RRT”) alternative was similar to 8.1D Mod 5, except that it took the 1-93 traffic northbound to the Tobin Bridge out of the tunnel and instead created a viaduct structure; two lanes were added to the mainline bridge and two loop ramps merged into one in North Cambridge. The DSEIS/R noted that this design eliminated the circuitous tunnel route that prompted much of FHWA’s concern with 8.1D Mod 5, but observed this option still had a tunnel from Storrow Drive eastbound to 1-93 north and the Tobin Bridge and consequently had a projected accident rate which, while lower than 8.1D Mod 5 was still higher than the NRT. 3. The NRT alternative eliminated the tunnel under the Charles River. Traffic from Storrow Drive to the north would cross the river on a second four-lane bridge upstream and parallel to the 'mainline bridge and three loop ramps would reduce to two in North Cambridge. The DSEIS/R found that this design was better than Scheme Z because it used a land tunnel for the connections between Storrow Drive and 1-93 southbound, as did 8.1D Mod 5 and the RRT, thus it “eliminate[d] the much-criticized double river crossing aspect of Scheme Z, and it reduce[d] the number and height of loop ramps on the north bank of the Charles River.” The MHD also contended this design had a “striking long-span cable stayed mainline bridge of ‘signature’ quality that contrasted] sharply with the much-criticized Scheme Z bridge structure.” The NRT was found to have the lowest projected accident rate of the three alternatives presented to Scheme Z. February 1994.: The MHD and the FHWA issued a Final SEIS/R. The document chose the NRT as the preferred alternative. It concluded that the “relative impacts and benefits of the three new design alternatives are not so significantly different so as to indicate an obvious choice based on environmental impact only.” However, the NRT was found to provide the “best resolution of traffic operations and safety issues.” The FSEIS/R noted that the NRT was the least expensive alternative to Scheme Z. the costs of the four alternatives were identified as: 8.1D Mod 5 = $1,282 million; RRT = $1,131 million; NRT = $995 million; Scheme Z = $489 million. The FSEIS/R also found that the tunnell-ing required by 8.1D Mod 5 and RRT would cause significant disruption to the river during construction, with the potential for adverse effects on water quality and a prolonged construction phase. The FSEIS/R considered other modifications to 8. ID Mod 5, including the redesign of the Leverett Circle area, but found that redesign would still have the negative aspects of long, curving tunnels and multiple merge decision points. This refinement would have also required acquisition of a portion of the Nashua Street parcel specifically designated as a protected § 4(f) parkland resource. The December 1993 FSEIS/R, in response to comments, considered relocating the river tunnel to a location downstream of the railroad bridge. Comments from the City of Cambridge (“Cambridge”) in particular suggested expanding a realigned tunnel to include traffic from 1-93 southbound to Stor-row Drive, making it a two-way tunnel and thus decreasing the width of the mainline bridge. The FSEIS/R acknowledged that this Realigned Reduced-River Tunnel (“R-RRT”) alternative would eliminate some of the problems associated with the “unrefined” RRT and would move construction impacts out of the recreational segment of the Charles River to the transportation corridor, but concluded that the refinement would generate circuitous use of local street intersections and would also produce negative impacts on parkland and historic resources. Other identified problems with the refined tunnel relocation proposed by Cambridge included severe temporary adverse impacts on the aquatic resources of the Charles River due to construction; possible interference with the flood control pumps at the Charles River Dam; possible construction problems with alignment of the proposed North Station/South Station rail link and the MBTA Orange Line tunnel, and an increase of two years in construction time. The December 1993 FSEIS/R expressly considered the impacts of the four design alternatives on the § 4(f) resources formally identified by the MDC. It concluded that the NRT, RRT, and 8.1D Mod 5 all had fewer impacts to parklands in comparison with impacts from Scheme Z. Based on the functional equivalency of the new alternatives, their substantial similarity in proximity and other permanent impacts, and their expansion of Paul Revere Landing Park, the construction impacts of the Reduced River Tunnel Alternative and Alternative 8.1D Mod 5, and the latter alternative’s greater traffic congestion next to the Esplanade, the Preferred [NRT] Alternative minimizes harm to parklands compared to these alternatives. The refined version of the Reduced River Tunnel Alternative is very similar to the Preferred Alternative as it affects 4(f) Parklands, and does not reduce harm to a greater degree. December 1993 FSEIS/R, Part I, Final Section 4(f) Evaluation, at 17-18. The Appendix to the Section 4(f) Evaluation in the December 1993 FSEIS/R included a letter dated December 30, 1993 from Ilyas Bhatti, MDC Commissioner, to Peter Zuk, the Project Director for the CA/T project, in which the MDC reaffirmed the § 4(f) designations in its November 9,1990 letter, noting that “there have been no changed circumstances that would necessitate any alteration in park designation in the New Charles River Basin portion of the MDC’s Charles River Reservation, as outlined in my letter ... dated November 9, 1990.” December 1993 FSEIS/R, Part I, Final Section 4(f) Evaluation, App. 2, at 1. March 18, 199U: EOEA issued a Certificate for the FSEIS/R. June 9, 199W- FHWA issued its ROD approving the NRT as the Preferred Alternative. II. PROCEDURAL POSTURE Consolidated before me are two actions that challenge the process and substance of the decision-making through which various state and federal agencies selected the design of the Central Artery roads and highways that will cross the Charles River. In January 1995, forty-four individual plaintiffs and three organizations brought an eight-count complaint (the “Geer Complaint”) against the FHA, the MHD, and their administrators. In March 1995, Cambridge brought a sixteen-count complaint against the FHA, the Governor of Massachusetts, the Massachusetts Secretary of Transportation and Construction, the MHD, the MDC, and their administrators. All parties have moved for summary judgment. This Memorandum will detail resolution of the motions for summary judgment. III. STANDARD OF REVIEW The agency action at issue here is renewable under the Administrative Procedure Act (“APA”). Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988). The agency action may not be overturned unless it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Conservation Law Foundation v. Federal Highway Admin., 24 F.3d 1465, 1471 (1st Cir.1994); 5 U.S.C. § 706(2)(A). A reviewing court must conduct a searching and careful inquiry into whether the agencies’ decisions were based upon the relevant factors. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). But the court must not simply substitute its own judgment for that of the agencies. Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983); Adams v. United States Environmental Protection Agency, 38 F.3d 43, 49 (1st Cir.1994) (citations omitted). Because review of the administrative record here takes place in summary judgment motion practice, if I find “the agency’s determination procedurally adequate, summary judgment in [the agency’s] favor [is] appropriate unless [the non-m.oving party has] raised a genuine issue of material fact as to whether its substantive decision was arbitrary and capricious or an abuse of discretion.” Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 7 (1st Cir.1981). See generally, Citizens for the Scenic Severn River Bridge, Inc. v. Skinner, 802 F.Supp. 1325, 1332 (D.Md.1991), aff'd, 972 F.2d 338 (4th Cir.1992). A. Summary Judgment and Agency Review The First Circuit has elaborated the standards for evaluating a summary judgment motion in connection with judicial review of agency actions. In Commonwealth of Massachusetts v. Secretary of Agric., 984 F.2d 514 (1st Cir.), cert. denied, 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993), the court en banc observed that the “idiosyncratic nature of summary judgment practice,” requiring the court to indulge all reasonable inferences in favor of the non-moving party, leads to a “slightly different twist to the operation of the familiar ‘arbitrary-and-capricious’ standard.” Id. at 525. The court held: [T]he real question is not whether the facts [can establish some dispute], but rather, whether the administrative record, now closed, reflects a sufficient dispute concerning the factual predicate on which [the agency] relied ... to support a finding that the agency acted arbitrarily or capriciously. Id. B. NEPA Evaluation NEPA embodies “twin aims: to ensure that the agency takes a ‘hard look’ at the environmental consequences of its proposed action, and to make information on the environmental consequences available to the public,” Dubois v. United States Dep’t of Agriculture, 102 F.3d 1273, 1285 (1st Cir.1996), cert. denied sub nom., Loon Mountain Recreation Corp. v. Dubois, — U.S.-, 117 S.Ct. 2510, 138 L.Ed.2d 1013, 1997 WL 155449 (June 27, 1997), (citing Robertson, 490 U.S. at 350, 109 S.Ct. at 1845-46), NEPA “seeks to create a particular bureaucratic decision making process, a process whereby administrators make important decisions with an informed awareness of how the decision might significantly affect the environment.” Sierra Club v. Marsh, 872 F.2d 497, 497 (1st Cir.1989) (Breyer, J.); see also Andrus v. Sierra Club, 442 U.S. 347, 349-52, 99 S.Ct. 2335, 2336-38, 60 L.Ed.2d 943 (1979). NEPA review is narrow in scope. Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433 (1980) (per curiam). The issue is not whether the agency’s decision is “ideal”, State of Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 327 (5th Cir.1988), or even the “best”, City of Stoughton v. United States Environmental Protection Agency, 858 F.2d 747, 756 (D.C.Cir.1988), but rather “ ‘whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment.’ ” Motor Vehicle Manufacturers Assn, 463 U.S. at 43, 103 S.Ct. at 2866 (citations omitted). The reviewing court in making this analysis is seeking to “assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns.” Grazing Fields v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980). C. Section 4(f) Evaluation In contrast to the broad concerns of NEPA with procedures to ensure environmentally informed decision making, § 4(f) narrows the focus rigorously to the substantive goal of protecting parkland. The requirements of § 4(f) are “stringent.” Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1447 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). The language of the statute is a “plain and explicit bar to the use of federal funds for construction of highways through parks — only the most unusual situations are exempted.” Overton Park, 401 U.S. at 411, 91 S.Ct. at 821. The plaintiffs concede that there is no prudent and feasible alternative to using the various parklands located at or near the Charles River Crossing site. Thus, their challenge is not mounted under § 4(f)(1). They contend instead that the defendants’ actions violate the requirement in § 4(f)(2) to minimize harm to public parks. Id. Thus, the issue here is whether the FHWA acted in a way “that its regulations did not contemplate, or without considering [the MDC’s position], or in reliance on a manifestly inadequate factual showing.” Mass. v. Secretary of Agrie., 984 F.2d at 526. IV. DID FHWA COMPLY WITH NEPA? The plaintiffs have framed six issues within the NEPA prong of their challenge to defendants’ choice of the NRT alternative. Three of these issues — alleged failures to describe the existing environment adequately, to consider environmental impacts adequately and to consult with the MDC — are so bound up in the § 4(f) prong of the plaintiffs’ challenge that they are more intelligibly considered in the following section regarding § 4(f), where the pivotal point is the propriety of the FHWA and MDC delineation of the parkland environment. I take up in this section the three issues the plaintiffs have framed which stand alone as NEPA concerns. A. Was There A Failure to Consider All Alternatives? The plaintiffs allege that the December 1993 FSEIS/R failed to evaluate all alternatives objectively, but instead focused only upon a comparative evaluation of Scheme Z and the NRT. Cambridge Mem. Opp.Mot.Summ.J. (“Cambridge Memo.”) at 85; Geer Mem.Opp.Mot.Summ.J. (“Geer Memo.”) at 49. The plaintiffs argue the defendants should have given more focus to tunnel alternatives, in particular the R-RRT alternative. Id. Examination of the documents compiled by the agencies demonstrates that the defendants exhaustively evaluated the impacts of the final alternatives: Scheme Z, 8.1D Mod 5, the NRT, the RRT, and the R-RRT. Furthermore, throughout the history of this project, the MHD examined a vast array of alternatives. See November 1990 FSEIR, Part II, Analysis of Alternative Design Options at IIB 1-6 (listing over 100 various alternatives that were considered at one time or another). An agency is not required to study every possible alternative. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 552, 98 S.Ct. 1197, 1216, 55 L.Ed.2d 460 (1978). “Common sense also teaches us that the ‘detailed statement of alternatives’ cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man.” Id. It is enough that the defendants here considered the alternatives that they did in the way that they did. The plaintiffs’ desire to have the R-RRT alternative explored in yet greater detail contravenes the proper deference that the court must give to the technical decisions made by the agencies. “It is of course always possible to explore a subject more deeply and to discuss it more thoroughly,” Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C.Cir.1987), but it is the proper role of the agencies to determine where to draw the line. Id. Here, I note that record discloses a number of difficulties posed by the R-RRT alternative. These include the problems of blasting in the Charles River; aquatic impacts; hydraulic impacts; construction impacts; problems in coordinating construction with other aspects of the Charles River Crossing and Central Artery Project; problems relating to the proximity to the Orange Line tunnel; and additional length of construction time. December 1993 FSEIS/R, Part I, Preferred Alternative at 2-19-20. Given this record detailing the problems with the R-RRT alternative, I am satisfied that the decision of the agencies not to pursue this alternative further was neither arbitrary nor capricious. The plaintiffs also contend that the 1993 DSEIS/R indicates, in some respects, that the 8.1D Mod. 5 and the RRT alternatives are superior to the NRT. Cambridge Memo, at 89. I note that under NEPA it is the responsibility of the agency, not the courts, to weigh the conflicting opinions that may appear in a report. Valley Citizens for a Safe Environment v. Aldridge, 886 F.2d 458, 460 (1st Cir.1989). I find that all alternatives were adequately considered before the defendants made their decision. B. Was There a Failure to Respond to Significant Comments? The plaintiffs also allege that the December 1993 FSEIS/R violates NEPA because it fails to provide adequate responses to comments made earlier on the DSEIS/R. Cambridge Complaint, ¶¶ 164-166. Although Cambridge’s Complaint does not specify with particularity which of the literally hundreds of comment letters that appear in the record the FHWA’s response was inadequate, I gather from the Cambridge Memo, that four in particular are alleged to be problematic. These include responses to: an October 4, 1993 Memorandum from the Massachusetts Coastal Zone Management (“MCZM””) program, December 1993 FSEIS/R, Part II at S-7 (10/4/93 Memorandum from the MCZM); an October 5, 1993 letter from the DEP, December 1993 FSEIS/R, Part II at S-8 (10/5/93 Letter from DEP); an October 5, 1993 letter from the EPA, December 1993 FSEIS/R, Part II at F-2 (10/5/93 Letter from EPA); and an October 5, 1993 letter from the Cambridge Conservation Commission (“CCC”), December 1993 FSEIS/R, Part II at L-5 (10/5/93 Letter from CCC). Cambridge alleges that, for the first three comment letters, the inadequate responses are those that relate to the impact of tunneling on aquatic resources for any of the proposed alternatives that include tunnel(s) between Storrow Drive and Cambridge. Cambridge Memo, at 57-58. Together, the MCZM Memorandum and DEP and EPA letters state, in varying ways, that although tunneling will have “greater” impact on water quality than the NRT alternative, these impacts will only be temporary during the construction period and that construction techniques are available to lessen the impacts. Id.; see also id. at 98. The CCC letter similarly states that the FHWA wrongly balances short-term construction impacts associated with tunneling. 10/5/93 Letter from CCC. Cambridge claims that FHWA’s responses to these comments were non-existent in the EPA’s case and consisted only of an inadequate “[c]omment noted” in the cases of the MCZM, DEP, and the CCC. Cambridge Memo, at 98-99. Upon a dose examination of the record, I do not find the FHWA responses to these, or any other, comment letters to be inadequate or otherwise arbitrary and capricious. As several of the commentors noted, all of the tunnel alternatives will result in construction impacts. The MCZM memorandum itself notes that contaminated sediment is likely to be an impact associated with tunnel construction. 10/4/93 Memorandum from the MCZM. This area of comment was considered fully in the larger discussion of alternatives where the FHWA weighed the competing short-term impacts and long-term prospects of the several alternatives before making its choice of the Preferred Alternative. NEPA does not require that an agency choose the alternative that some of the commentors — or even the court — might believe is best. Strycker’s Bay, 444 U.S. at 227-28, 100 S.Ct. at 499-500; Grazing Fields, 626 F.2d at 1072. It is the agency’s responsibility to determine how to weigh each of a project’s impacts. Robertson, 490 U.S. at 350-51, 109 S.Ct. at 1846 (holding that “[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs”). It is settled that “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, 444 U.S. at 227-28, 100 S.Ct. at 499-500 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976)). Here, where the FHWA plainly considered the impacts for the various alternatives, it was not arbitrary and capricious for the FHWA to have decided that the benefits of the Preferred Alternative outweighed the impacts associated with the tunnel alternatives. I find no failure to respond to significant comments in the December 1993 FSEIS/R read as a whole. C. Was There Inappropriate Decision-making Outside of the NEPA Process? In Count XV of its complaint, Cambridge alleges that the defendants engaged in unlawful decision-making regarding the project prior to the completion of the NEPA process. This unlawful decision-making is said to be reflected in two documents that provide mitigation for the CA/T Project without NEPA review. These are: (1) a document entitled the “Massachusetts Transportation Agenda” which the EOTC adopted as agency policy on September 27, 1990 and which was included in the January 1991 FSEIS, Cambridge Complaint at ¶ 174; see also January 1991 FSEIS, App. 4, September 27, 1990 Massachusetts Transportation Agenda; and (2) a Memorandum of Understanding among the EOTC, the MHD, and CLF entitled “Traffic and Air Quality Mitigation for the Central Artery/Third Harbor Tunnel Project.” Cambridge Complaint at ¶ 175; see also January 1991 FSEIS, App. 2, December 19, 1990 Memorandum of Understanding. The Memorandum of Understanding commits the EOTC and MHD to extensive transportation mitigation measures, including mass transit improvements, freezes on highway construction, increased high occupancy vehicle lanes in the region, and other measures. Id. Cambridge alleges that these documents were prepared without public notice or opportunity to comment, and therefore were not subject to any actions satisfying NEPA’s procedural requirements. Cambridge Complaint at ¶¶ 176-81. Specifically, the plaintiffs allege that the FHWA did not satisfy NEPA because the “three agreements provide ‘mitigation’, as that term is defined by NEPA; second, because FHWA plainly relied upon the mitigation agreements; and third, because NEPA regulations required EOTC and MHD to adhere to the NEPA process.” Cambridge Memo, at 101. The defendants respond, however, that these documents are an acknowledgment of state, not federal, commitments and thus were not subject to the NEPA process. Defs. Joint Reply Mem. at 68-69. The defendants point to the FHWA’s ROD on May 10, 1991 which they contend demonstrates that FHWA “expressly declines to incorporate” the commitments evidenced by the two documents. Id. at 69 (emphasis in original). The May 1991 ROD contains the following language: A number of comments ... support the program of mass transit and transportation demand reduction measures adopted by the State in the FSEIS/R and related State environmental review documentation. These comments emphatically view the implementation of these commitments as necessary to' achieve Federal and State environmental goals of reducing traffic congestion and improving air quality, and they accordingly urge that these commitments be incorporated by FHWA into this ROD.... In response to these comments, this ROD recognizes these public transportation improvement commitments by the State.... These commitments are not necessarily project related, but we intend that their inclusion in the ROD be to recognize the authority of the State to enter into them, as well as the affirmative, ongoing obligation of the State to fulfill the commitments. Although the commitments are included in the FSEIS appendices and referred to in this ROD, they reflect the understanding of the parties involved and are not Federal commitments. A.R. Doc. 2 at 28 (5/10/91 FHWA ROD) (emphasis added). In addition, FHWA’s June 1994 ROD states that the mitigation measures for “transportation, land use, air quality, noise and vibration, navigation, historic and archaeological resources, and visual impacts” as found in Section 6.2.1 of the December 1993 FSEIS/R are simply incorporated by reference. A.R. Doe. 3 at 16 (June 1994 FHWA ROD). Moreover, a close examination of the December 1993 FSEIS/R reveals that FHWA did not rely on the transportation mitigation measures referenced in either the Massachusetts Transportation Agenda or the December 19,1990 Memorandum of Understanding. See December 1993 FSEIS/R, Part I, §§ 4.1.10 and 6.2.1. These two sections identify the transportation mitigation measures for the Charles River Crossing as including a Rutherford Avenue Corridor Study, replacement parking at the MBTA’s North Station parking garage, pedestrian paths and bike-ways, high occupancy vehicle lanes on 1-93 north of the Charles River, and several intersection improvements. Id. I do not find in the December 1993 FSEIS/R any of the mitigation measures listed in the two documents which Cambridge claims the FHWA relied upon. Compare id. with January 1991 FSEIS, App. 2 (12/19/90 Memorandum of Understanding) and January 1991 FSEIS, App. 4 (9/27/90 Massachusetts Transportation Agenda). The mitigation measures in the two documents include parking freezes, priority treatment for van and car pools, commuter rail and mass transit improvements (listed in Appendix A of the Memorandum of Understanding), indexing of MBTA fares, expanded water shuttle services, a freeze on expansion of radial roadways within the Route 128 belt, increased high-occupancy vehicle lane use on various roadways including 1-93 North and South, the Southeast Expressway, and the Massachusetts Turnpike, and a second major airport. Id. None of these mitigation measures appear in the December 1993 FSEIS/R. They are apparently neither “federally funded nor significantly bound up in a federally funded project” sufficiently to be considered a federal action required to be addressed under NEPA. Citizens for Responsible Area Growth v. Adams, 680 F.2d 835, 839 (1st Cir.1982). D. Conclusion The FHWA throughout a twelve year environmental review process evaluated and addressed the numerous environmental issues raised. In addition, the FHWA considered a vast array of alternatives. The FHWA also solicited comments on its reports and responded to them in their final reports. It evaluated the various comments within the broad analysis of alternatives. And while the FHWA noted as part of the larger context various state initiatives and commitments, there was no decision-making undertaken or relied upon by the FHWA outside the NEPA process. My review of these aspects of plaintiffs’ challenge compels me to conclude that the FHWA did not act in an arbitrary or capricious manner under NEPA and that the FHWA’s actions were procedurally adequate. Y. DID FHWA COMPLY WITH SECTION 4(f)? The plaintiffs press five basic but overlapping issues in the § 4(f) prong of their challenge to defendants’ choice of the NRT alternative. At the threshold are two § 4(f) issues, whether there was: a) failure to follow appropriate procedures for identification of protected resources, with consequent b) failure properly to identify all areas protected by § 4(f). These threshold issues also comprehend the issues of failure to describe the existing environment adequately and failure to consult the MDC appropriately, which were framed as NEPA concerns. The remaining § 4(f) issues — whether there is constructive use of § 4(f) resources; whether harms to protected resources have been minimized and whether the defendants are adequately committed to mitigation — cannot be examined in a meaningful fashion until the threshold issues concerning identification of § 4(f) resources are resolved. Accordingly, after outlining the general principles governing § 4(f) controversies, I turn initially to those issues. The Supreme Court in Overton Park, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136, outlined how courts should review decisions under § 4(f). The Court identified three factors for consideration. Conservation Law Foundation v. Federal Highway Administration, 827 F.Supp. 871, 882 (D.R.I.1993), aff'd, 24 F.3d 1465 (1st Cir.1994). The reviewing court must determine whether the Secretary of Transportation acted within the scope of his or her authority by deciding whether or not the Secretary could reasonably have believed that there were no prudent or feasible alternatives to the chosen project. Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-24. Because plaintiffs concede there is no prudent or feasible alternative in this case, this issue is not before me here. The court must also determine whether the Secretary followed all of the procedural requirements under the statute. Id. at 417, 91 S.Ct. at 824. And the court must determine whether or not the decision was arbitrary and capricious based on whether or not “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. at 416, 91 S.Ct. at 824. Before addressing the FHWA’s § 4(f) review specifically in dispute in this litigation, I will provide an overview of the guidelines for § 4(f) evaluation in general. In order for a property to qualify for protection under § 4(f) it must be (a) a public park that is (b) of national, state or local significance (as determined by the officials having jurisdiction over the park). 49 U.S.C. § 303(c). The FHWA reviews the state determination of significance of a public park for reasonableness. Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 7 (1st Cir.1981). The first step in the process is to identify § 4(f) resources. The FHWA’s “Section 4(f) Policy Paper,” see Tab 1 to Cambridge Appendix (“Policy Paper””), addresses approaches for identifying § 4(f) resources. The Policy Paper states that “it is essential that the following are completely documented: (a) the applieability/nonapplicability of Section 4(f); (2) the coordination efforts with the official(s) having jurisdiction over or administering the land (relative to significance of the land, primary use of the land, mitigation measures, etc.); (3) the location and design alternatives that would avoid or minimize harm to the Section 4(f) land; and (4) all measures to minimize harm, such as design and landscaping.” Id. at 3. Once the FHWA determines that a project will use protected § 4(f) land, a § 4(f) evaluation must be prepared. Id. Section 4(f)(1) requires that, if possible, the project avoid use of protected resources at all. The plaintiffs acknowledge that because all of the alternative designs for the CA/T Project require use of protected resources, there is no “feasible and prudent” alternative and that the FHWA has complied with the directives of § 4(f)(1).” If all of the alternatives use § 4(f) resources, the “alternative which has the least overall impact to Section 4(f) resources must be selected unless it is not feasible and prudent.”” Policy Paper at 5. The FHWA must integrate all possible planning to minimize harm to protected park lands, through consultation with the local official or agency which owns or administers the land. Id. at 5. Throughout this process and prior to the circulation of the draft § 4(f) evaluation, the FHWA should coordinate with the official or agency administering the land, as well as relevant federal officials. Id. at 6. In this case, the agency administering the land was the MDC. Two formal MDC communications to the FHWA in response to draft FSEIS/R § 4(f) determinations dealt with the resources at issue here, which the plaintiffs contend are within the scope of § 4(f). In the November 9, 1990 letter to FHWA Regional Administrator Anthony Fusco, the MDC’s Bhatti stated, on behalf of the MDC, that “the MDC has designated the portion of the Basin extension river surface area upstream of the railroad bridge for park and recreational purposes.”” 11/9/90 Letter, December 1993 FSEIS/R, Part I, Final Section 4(f) Evaluation, App. 3, Ex. A, at 2. In connection with the New Basin, the letter stated that: With respect to the portion of the Charles River surface located downstream of the railroad bridge in this multiple use area, the MDC recognizes that the potential for similar recreational uses is not present. This portion of the River is constrained in useable width ... Moreover a significant portion of the water surface near the north bank of Paul Revere Landing Park is restricted from use and is inappropriate for small boats.... Although boat passage through this area is permitted, this is not a suitable location for active recreational boating and none currently exists there today due to these conditions. The downstream river area is also partially bordered by lands which are under the ownership of the transportation agencies, including the MBTA and the Department of Public Works. MDC plans for use of this downstream river portion of the Basin extension include continuation of its existing navigation, flood control, and associated water management functions, along with transportation purposes, as the primary passageway for recreational boats traveling to the park areas upstream ... While this navigational function is supportive of recreational uses, the primary use of the water surface itself downstream of the railroad bridge will not be recreational. Id. The December 30, 1993 letter from Bhatti to CA/T Project Director Zuk reaffirmed these § 4(f) characterizations. 12/30/93 Letter, December 1993 FSEIS/R, Part I, Final Section 4(f) Evaluation, App. 2, at 1. The letter noted that “there have been no changed circumstances that would necessitate any alteration in park designations in the New Charles River Basin portion of the Charles River Reservation, as outlined in my letter ... dated November 9,1990.” Id. A. Was There a Failure to Follow Appropriate Procedures for Identification of Protected Resources? The plaintiffs allege that the MHD violated procedural mandates by bargaining for changes in § 4(f) designations in order to allow the project to move forward. Cambridge claims that if the November 9, 1990 MDC letter is viewed as altering the § 4(f) status of the New Charles River Basin to non-protected resource then the FHWA bargained with the MDC to exchange a § 4(f) designation for additional mitigation. This bargaining would violate § 4(f), according to the plaintiffs, because the proper procedure required under the statute requires that § 4(f) resources be identified and determined to be “used” in a particular project well before mitigation considerations are made.” Section 4(f) requires the FHWA to obtain the MDC’s position regarding park land designations and to review that decision for its reasonableness. The record before me does not indicate that the FHWA failed to do so. The FHWA accepted comments throughout the process, in the form of various reports and letters from the MDC regarding the parcels at issue. See e.g., 11/9/90 Letter, 1991 FSEIS at III-4 and Appendix 3; 12/30/93 Letter, December 1993 FSEIS/R, Part I, Section 4(f) Evaluation, Appendix 3; Master Plan, A.R.Doc. 414; A.R.Doc. 425. ' Based on a review of these documents, as well as the various state legislation connected with the lands and the ways in which the properties had been and were being utilized, it is apparent the FHWA determined that the MDC had not ever made a formal designation of the relevant portion of the New Charles River Basin or the other parcels in dispute as § 4(f) resources and the FHWA treated this lack of designation as reasonable. The plaintiffs also contend that the FHWA failed to consult with the MDC adequately as required under § 4(f). Cambridge argues that the EOEA prevented the MDC from commenting on the 1991 FSEIS/R and submits an April 8,1991 internal MDC memorandum with a draft comment to the FHWA dated the same day as proof that the MDC was denied the opportunity to comment. While it is true that the internal MDC memorandum submitted stated that the “EOEA would forward the December comments on the FSEIR to the Federal Highway Administration and that [the EOEC told the MDC that] individual agencies were not to send separate comments,” Tab 8 to Cambridge Appendix, it is not the FHWA, but the Massachusetts EOEA office which decided not to forward the draft letter on to the FHWA as comments to the FSEIR.” That the EOEA decided to rely on the official December 1993 letter rather than a contradictory draft letter dated four months later does not transform FHWA’s determination that the November 1990 and December 1993 letters were sufficient to allow it to review the MDC’s decision into a violation of the procedural requirements of § 4(f). The initial review of the § 4(f) process in this section is one of pure procedure. I review below in this Memorandum the substantive decisions of the FHWA throughout the CA/T Project in designating the proper § 4(f) lands and incorporating the proper measure to minimize harm and mitigate effects. My review of the plaintiffs claim that there was a failure to consult adequately rests not on a review of the substantive outcome of the process but rather on the alleged shortcomings in the process. Although the plaintiffs point to the record as proof that the FHWA essentially traded a § 4(f) designation for greater levels of mitigation, the abundance of documentation appears to me to reflect not impropriety but rather an intense and somewhat disputatious discussion back and forth among the numerous parties, with inherent posturing on all sides. The eventual compromise and agreement involved evidence the consultation as required under the statute. Rather than indicating bad faith on the part of the FHWA or any other defendant, the record discloses numerous voices of advocates attempting to articulate as strong a position as possible for their views at various times throughout. Consultation here involved the FHWA listening to all of these voices and reconciling the sometimes conflicting messages to conduct an overall review and determination. Regardless of whether or not I agree with the final outcome of the FHWA’s decision-making process, on the record before me it appears quite clear that the FHWA did not fail to follow the general procedure and process for consultation under § 4(f) regarding protected resources. Once the FHWA determined that § 4(f) resources were at risk in the project, it reviewed the MDC’s nuanced designation of various lands as parks in connection with this project. At numerous times throughout the process, § 4(f) evaluations were completed within the various draft and final EIS/Rs. The FHWA consulted with the MDC as well as other federal agencies and solicited comments to which it made appropriate responses at each step in the process. The FHWA followed the general guidelines of the Policy Paper in identifying § 4(f) resources and then addressing efforts to minimize and mitigate harms to the areas once identified. Having found that the FHWA has not committed a violation of the procedural mandates of § 4(f), I turn now to the specific identification of the individual resources in dispute and the efforts of the FHWA to ensure proper minimization of harms. B. Was There a Failure to Identify All Resources Protected by § 4(f)? Section 4(f) is triggered only when a project requiring the use of a protected property seeks federal funding. Therefore, the “labeling of property as ‘used’ or ‘not used’ is the prerequisite to further examination and to compliance with the provisions of § 4(f).” Adler v. Lewis, 675 F.2d 1085, 1091 (9th Cir.1982). The analysis of whether or not a project uses § 4(f) lands therefore precedes the Overton Park review. Id. Section 4(f) affords protection for land which is “publicly owned and designated or administered as a public park, recreational area, or wildlife or waterfowl refuge.” Ringsred v. Dole, 828 F.2d 1300, 1304 (8th Cir.1987) (emphasis in original); 49 U.S.C. § 303(e). Not all publicly owned lands, however, are protected by § 4(f). Two conditions must be met in order for the statute to apply: “first, ... the land must be publicly owned, and second, the land must be from one of the enumerated types of publicly owned land, i.e., a public park, recreational area, or wildlife and waterfowl refuge.” National Wildlife Federation v. Coleman, 529 F.2d 359, 370 (5th Cir.), cert. denied sub nom., Boteler v. National Wildlife Federation, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976) (citations omitted). The land “must be ‘designated or administered, formally or informally’ ” for one of these purposes. Mullin v. Skinner, 756 F.Supp. 904, 924 (E.D.N.C.1990) (statute declaring lands held in public trust insufficient to create § 4(f) protection without further designation) (citations omitted). Federal regulations implementing § 4(f) are clear in stating that while it is the federal, state or local official which has jurisdiction over a given park or recreation area to determine its significance, it is the responsibility of the FHWA to review this determination of significance for its reasonableness. 23 C.F.R. § 771.135(c); Concerned Citizens, 641 F.2d at 7. The Policy Paper is explicit in stating that “[t]he final decision on applicability of Section 4(f) to a' particular type of land is made by FHWA.” In reaching this decision, however, FHWA normally relies on the official having jurisdiction over the land to identify the kinds of activity or functions that take place.” Policy Paper at 9. The designation of specific parcels as park or recreation resource under § 4(f) is one which must be formal or explicit. See Policy Paper at 18. In general, an entire parcel, which is a park or recreation area, will be presumed to be significant, unless the official having jurisdiction over it determines that the entire site is not significant. 23 C.F.R. § 771.135(c). But when a parcel is administered and managed for multiple uses, § 4(f) applies only to those portions of the parcel which function for, or are designated in the plans of the administering agency as being for, significant park, [or] recreation, ... purposes. The determination as to which lands so function or are so designated, and the significance of those lands, shall be made by the officials having jurisdiction over the lands. The Administration will review this determination to assure its reasonableness. The determination of significance shall apply to the entire area of such park, [or] recreation, ... sites. 23 C.F.R. § 771.135(d). Throughout, the ultimate duty to determine § 4(f) status is in the hands of the FHWA. While the MDC, as the state agency with jurisdiction over the land, has the authority to designate certain parcels formally as § 4(f) protected resources, the FHWA reviews any designation — or by negative pregnant, any failure to designate brought to the agency’s attention — for reasonableness. When there is no formal designation but some indication that such nondesignated land is being or will be used as parkland, the FHWA must determine whether the contested parcel is protected under the statute. 1. The Area of the Charles River Between the New Charles River Dam and the MBTA Bridge (The New Charles River Basin) The Policy Paper states that “[i]n general, rivers are not subject to the requirements of Section 4(f).... Of course, Section 4(f) would also apply to the lakes and rivers or portions thereof which are contained within the boundaries of parks, recreational areas, refuges, and historic sites to which Section 4(f) otherwise applies.” Policy Paper at 16. This statement only presents the general rule. A river such as the Charles could presumably be protected as a § 4(f) resource if it were formally designated or administered as a protected park or recreation area. The plaintiffs claim that the New Charles River Basin has been designated as a § 4(f) resource by Massachusetts statute, as well as by formal MDC designation. Chapter 465 of the Massachusetts Acts of 1903 created the Charles River Basin Commission and provided for construction of the dam that currently exists at the Museum of Science. Upon completion of the dam, the metropolitan park commission was to “have exclusive control of the dam and lock and of the basin and river between the dam and the city of Waltham, as a part of the metropolitan parks system, ...” Mass.St.1903, ch. 465, § 7, Tab 3 to Cambridge Appendix. A 1909 statute in turn defines the term “basin”” to refer to “the dam and any lock, highway, park, parkway, drawbridge or sluiceway constructed in connection therewith under authority of said chapter four hundred and sixty-five and acts in addition thereto and in amendment thereof, ... the Charles river and the waters thereof, including the public navigable arms, tributaries and inlets thereof, whether covered by ice or not, lying between said dam constructed under authority of said chapter four hundred and sixty-five and the lower dam across said river at Watertown, and all lands or rights therein taken by eminent domain or otherwise acquired by the Charles river basin commis-sion____” Mass.St.1909, ch. 524, § 2, Tab 4 to Cambridge Appendix. The 1909 Act, in the following section, includes the same language as the 1903 Act concerning the park commissions control over the basin as part of the parks system. Id. at § 3. In addition, § 3 of the 1909 Act continues, stating that “[t]he metropolitan park commission shall also have and exercise over said basin all other powers, duties and liabilities now conferred or imposed upon said commission....” Id. In 1962, the Massachusetts Legislature acted again, adding the New Charles River area to the “basin” as defined in the 1909 Act. Mass.St.1962, ch. 550, § 2, Tab 5 to Cambridge Appendix. This Act specifically refers to the language quoted directly above in § 2 of the 1909 Act for its definition of “basin.” The defendants assert that the “separate enumeration of ‘waters’ and ‘park’ in the definition of ‘basin’ [in the 1909 Act] certainly suggests that the Legislature viewed those terms as distinct, rather than synonymous” as the plaintiffs claim. Def.’s Memo, at 7. This would represent a general transfer of a multi-use parcel to the parks commission, which would have authority over it in all of the ways enumerated. In reading the statute to give meaning to all of its terms and seeking to construe it consistently as a whole, I find the defendants’ review of the statutes in question and their determination that the statutes do not represent a formal designation of the entire Charles River, particularly the New Charles River Basin, as protected by § 4(f) to be reasonable. A review of the history of use of the disputed portion of the river reinforces my conviction that the FHWA did not act in an arbitrary and capricious manner. The statutory language itself reveals the multiple uses for this portion of the river at the time the legislation in question was passed. Section 5 of the 1909 Act specifically states that the park commission may “make reasonable rules and regulations, not unreasonably impairing freight traffic, for the care, maintenance, protection and policing of said basin.” Mass.St.1909, ch. 524, § 5. For most of Boston’s history, this portion of the Charles River has been a transportation corridor. See 11/9/90 Letter, December 1993 FSEIS/R, Part I, Section 4(f) Evaluation, Appendix 3, Exhibit A (“MDC plans for use of this downstream portion of the Basin extension include continuation of its existing navigation, flood control, and associated water management functions, along with transportation purposes, as the primary uses”). It does not comport with common sense to strain in reading the legislation proffered by the plaintiffs in a manner which is both seemingly internally inconsistent and against the weight of practicality. As the defendants observe, the Massachusetts Legislature can and has exercised its powers to make formal and explicit park designations. See Mass.St.1970, ch. 542 (creating Boston Harbor Islands State Park); Mass.St.1970, ch. 542 (creating Cape Cod Ocean Sanctuary). The Legislature took no such clear action here. In reviewing the Massachusetts Legislature’s actions with regard to the designation of the New Charles River Basin I do not find that the FHWA acted arbitrarily and capriciously in finding the legislation cited by the plaintiffs insufficient to constitute a formal § 4(f) designation. This does not, however, end my analysis with respect to this portion of the river. The plaintiffs further allege that the MDC has made a formal designation of the New Charles River Basin as a protected pa