Northwest Environmental Defense Center v. Wood

ORDER

Plaintiffs bring this action challenging the Army Corps of Engineers’ decision to issue a permit allowing Hyundai Electronics of America to fill 10.4 acres of wetlands to accommodate a semiconductor fabrication plant in Eugene, Oregon. Plaintiffs argue that the issuance of .the permit violates the Clean Water Act, 33 U.S.C. § 1344, and that the Army Corps of Engineers’ decision not to prepare an Environmental Impact Statement with regard to the issuance of the permit violates the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. Plaintiffs seek a preliminary injunction against the filling of the subject wetlands or, alternatively, a permanent injunction pending compliance with applicable laws and regulations (# 15). Defendants and defendant-intervenor Hyundai have filed cross-motions for summary judgment (# 30, # 32) as well as a motion to limit review to the administrative record (#29).

FACTS

Hyundai Electronics of America (Hyundai) entered into a contract with D.A.G. Trusts Partnership (DAG) to purchase a 205-acre parcel of land located in the Willow Creek Industrial Park in west Eugene. The Willow Creek site contains approximately 63.6 acres of wetlands. It is zoned for special light industrial use in the Eugene-Springfield Metropolitan General Plan. The site is within the area governed by the West Eugene Wetlands Plan (WEWP) but is not specifical *1375 ly addressed in the WEWP. The site is scheduled for inclusion in the "WEWP by July 31,1996. AR, vol. 1 at 22-23. 1

The Hyundai/DAG contract is contingent on DAG obtaining necessary permits, including a wetlands fill permit as required under the Clean Water Act (CWA). DAG submitted its initial application for such a permit to the Portland district of the United States Army Corps of Engineers (the Corps) on June 5, 1995, seeking approval to fill 34.7 of the 63.6 acres of wetlands.

The initial permit application sought to develop the semiconductor facility in three phases. Phase I consisted of a clean room manufacturing area, office space, central utilities, interior chemical storage and distribution, exterior bulk liquid gas storage, and parking. Phase II included facilities similar to those in phase I. Phase III would probably include facilities similar to phases I and II and would probably be comparable in size to phases I and II combined. AR, vol. 1 at 21.

The Corps solicited public comment through issuance of public notice on June 30, 1995. AR, vol. 1 at 52. The comment period was initially scheduled to end July 25, 1995, but was extended to September 5,' 1995. Public hearings were held August 16, 1995, and August 24, 1995. Colonel Timothy L. Wood, district engineer for the Corps, indicated at the August 24 hearing that “[a]ddi-tional information will be considered in the evaluation process up until the final decision is made.” AR, vol. 9 at 4296. During the process, the Corps received over 1200 letters as well as testimony from approximately 200 individuals. AR, vol. 1 at 50. A substantial amount of information, from both Hyundai and the public, was received after the official close of the public comment period. As all project changes subsequent to the close of the public comment period resulted in “reductions to wetland fills or potential impacts,” the Corps determined that “reinitia-ti[on] [of] the public review process ... is not required.” AR, vol. 1 at 52.

On December 20, 1995, the Corps issued wetlands fill permit number 95-00482, signed by Colonel Wood. In the decision document allowing' the permit, the Corps determined that the project purpose was to construct “a large semiconductor facility in the Eugene area.” AR, vol. 1 at 21. The Corps also found that ■

while the project is not water-dependent and includes the placement of fill in ... wetlands, it has been clearly demonstrated that there are no available, practicable alternatives having less adverse impact on the aquatic ecosystem and without other significant adverse environmental consequences that do not involve discharges into “waters of the United State's” or at other locations within these waters.

AR, vol. 1 at 62.

Finally, the Corps found that issuance of the permit was not contrary to the public interest and would not have a significant impact on the human environment, especially given the limitations and conditions imposed by the permit. AR, vol. 1 at 63-63; 65-70.

The permit limited and conditioned the project in. certain respects. It was issued only after Hyundai withdrew the phase III proposal and, thus, only authorized the first two phases. AR, vol. 1 at 22. The amount of wetlands to be filled was accordingly reduced from 34.7 to 10.4 acres. In addition, the permit required Hyundai to restore 13 acres of wetlands and enhance 6.9 acres of wet prairie lands. AR, vol. 1 at 29. The permit included 46 general and special conditions. AR, vol. 1 at 65-70.

DISCUSSION

I. Standards of Review

The Corps’ decisions to issue the wetlands fill permit and to forego an Environmental Impact Statement are subject to an arbitrary and capricious standard of review under the Administrative Procedure Act, 5 U.S.C. § 706. See also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-74, 109 S.Ct. 1851, 1859, 104 L.Ed.2d 377 (1989) (arbitrary and capricious standard applies to agency findings which involve agency expertise). Under this standard, an agency *1376 decision must be upheld unless it is “arbi-. trary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). Although “inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 828, 28 L.Ed.2d 186 (1971). The agency’s action may not be set aside so long as it has a “rational basis.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 290, 95 S.Ct. 438, 444, 42 L.Ed.2d 447 (1974); Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986).

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). The moving party must carry the initial burden of proof by identifying portions of the record which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In assessing whether a party has met this burden, the court must view the evidence and the inferences drawn from , that evidence in the light most favorable to the non-moving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir.1982).

If the moving party meets its burden, the burden shifts to the opposing party to present specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party cannot rely solely on facts alleged in their pleadings to avoid summary judgment. T.W. Elec. Serv. v. Pacific Elec. Contrs., 809 F.2d 626, 630 (9th Cir.1987). Instead, their response, by affidavit or otherwise, must set forth specific facts showing there is a genuine issue for trial. T.W. Elec., 809 F.2d at 630.

II. Motion to Limit Review to Administrative Record

Generally, review of agency decisions is limited to the administrative record as it existed when the agency rendered its decision. Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir.1986). However, other evidence may be presented for the limited purposes of determining whether the agency has considered relevant factors or adequately explained its decision. Greenpeace Action v. Franklin, 14 F.3d 1324,1334, n. 12 (9th Cir.1992).

Plaintiffs have submitted several expert declarations in an attempt to show that the Corps failed to consider relevant factors or explain its decision in light of the alleged controversy and uncertainty surrounding the issuance of the permit. The court has considered these declarations, but only to the extent they are relevant to whether the Corps considered relevant factors or adequately explained its decision.

III. Summary Judgment Motions

A. Clean Water Act

1. Practicable Alternatives Test

The Corps may not issue a wetlands fill permit without complying with the guidelines promulgated under section 404(b)(1) of the Clean Water Act. 33 C.F.R. § 320.4(a)(1). One such guideline requires the Corps to apply a “practicable alternatives” test, under which the Corps must deny a fill permit

if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.

40 C.F.R. § 230.10(a).

When the proposed project is not water dependent, the guidelines place the burden on the applicant to “clearly demonstratef ]” that there are no practicable, less damaging sites. 40 C.F.R. § 230.10(a)(3). The regulations define “practicable” to mean “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of the overall project purpose.” 40 C.F.R. § 230.10(a)(2); 230.3(q).

The regulations contemplate a certain degree of flexibility in an agency’s application of the practicable alternatives test under eer- *1377 tain circumstances. The preamble to 40 C.F.R. § 230.10 provides:

Although all requirements in § 230.10 must be met, the compliance evaluation procedure's will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by the specific ... activities.

In addition, the guidelines require the Corps to consider planning processes relevant to a proposed site:

To the extent that practicable alternatives have been identified and evaluated under a ... planning process, such evaluation shall be considered ... as part of the consideration of alternatives under the Guidelines.

40 C.F.R. § 230.10(a)(5).

a. Project Purpose

In order to conduct a practicable alternatives test, the Corps must first determine the “overall project purposes.” 40 C.F.R. § 230.10(a)(2). While the Corps may not manipulate the project purpose so as to exclude alternative sites, “the Corps has a duty to take into account the objectives of the. applicant’s project.” Sylvester v. United States Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.1989).

Plaintiffs contend the Corps erred in its application of the practicable alternatives test by defining the project purpose too narrowly. The Corps determined that Hyundai’s project purpose was to “develop a large semiconductor fabrication plant in the Eugene area.” AR, vol. 1 at 21. Plaintiffs contend that because Hyundai is a multinational company with national and international customer bases, there was no need to restrict the project purpose to Eugene; rather, the scope of alternate sites should have been national, or at least state-wide. Plaintiffs argue that Hyundai failed to clearly demonstrate that the project purpose should be restricted to the Eugene area.

The administrative record contains detailed explanations for Hyundai’s desire to build its plant in the Eugene area. These include proximity to customers, suppliers, and competitors; availability of quality, trainable labor; proximity to a major university; access to adequate transportation facilities; availability of sufficiently large sites in an urban area with adequate utilities/ proper zoning and other conditions appropriate for semiconductor manufacturing; land-use planning and regulatory support in the community; and the availability of financial and tax incentives. AR, vol. 4 at 1346 to 1356. The decision document states that the Corps “reviewed and evaluated ... the documents and factors concerning this permit application.” AR, vol. 1 at 62. In light of the substantial evidence in the record regarding Hyundai’s legitimate economic reasons for choosing to construct its project in Eugene, the Corps’ decision to restrict the project purpose to “the Eugene area” was neither arbitrary nor capricious.

b. Practicability of Alternatives

After determining the project purpose, the Corps must consider alternatives that are “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of the overall project purpose.” 40 C.F.R. § 230.10(a)(2). As noted above, the overall project purpose here was to “develop a large semiconductor fabrication plant in the Eugene area.” Under the regulations, Hyundai had the burden to show by clear and convincing evidence that, given cost, technology, and logistical factors, its overall project purpose could not be achieved on an alternative site with less damage to the aquatic ecosystem.

Hyundai considered seven sites within the Eugene area’s “Special Light Industrial” zoning designation: the Pierce site in Springfield (68 acres); the Gateway site in Springfield (200 acres); the Coburg-Crescent site in northeast Eugene (120 acres); the West Park site in west Eugene (127 acres); the Spectra-Physics site in west Eugene (122 acres); the Greenhill Technology Park in west Eugene (198 acres); and the Willow Creek site (240 acres). AR, vol. 4 at 1357, 1609. . Hyundai’s consultants stated thát the first four sites did not meet Hyundai’s size needs. Id. at 1357-58. Moreover, the Pierce site was located near a railway which would cause vibration that would interfere with the semiconductor fabrication process. AR, vol. *1378 4 at 1609. In addition, 80 of the Spectra-Physies site’s 122 acres had been designated for protection under the WEWP. AR, vol. 4 at 1358. Finally, Hyundai determined that the Greenhill site contained more valuable wetlands, would require more wetland-acres to be filled, would be more prone to vibration (requiring $6 million in the construction of isolation tables), and would be less aesthetically pleasing than the Willow Creek site. AR, vol. 4 at 1358 to 1368.

Hyundai also submitted information regarding the Enid Road site, a site plaintiffs maintain is a practicable alternative. AR, vol. 2 at 808. Hyundai submitted information that (1) there were three separate parcels owned by different parties, complicating the acquisition process; (2) the area is served by two electrical utilities suppliers, neither of which have the capacity to adequately serve Hyundai’s project; (3) the site is subject to harmful electrical interference; (4) heavy industry zoning allows uses such as railroad lines that could cause harmful vibrations; (5) the site is between railroad lines; (6) the site does not have adequate sanitary sewers or water supply; and (7) part of the site contains wetlands, and an existing storm water ditch would require relocation. AR, vol. 2 at 807-08. In addition, there is evidence in the record that rezoning other sites in the Eugene area would not be practicable. AR, vol. 1 at 346; AR, vol. 7 at 3206-13.

In its decision, the Corps’ reviewing officer does not reiterate or specifically analyze all the information submitted by Hyundai regarding the practicability of alternative sites in the Eugene area. However, he does state:

I have reviewed and evaluated, in light of the overall public interest, the documents and factors concerning this permit application. ... In doing so, I have considered the possible consequences of the proposed activities ... with regard to compliance with the 404(b)(1) Guidelines....

AR, vol. 1 at 62.

In addition, the reviewing officer was involved with soliciting information from Hyundai regarding practicable alternative sites, stating on one occasion:

I want to further emphasize the importance of your alternatives analysis in our evaluation of this application, and in our decision regarding this permit.

AR, vol. 5 at 2048.

The Corps concluded that “it has been clearly demonstrated that there are no available, practicable alternatives having less adverse impact on the aquatic ecosystem and without other significant adverse environmental con-sequences_” AR, vol. 1 at 62. It is apparent that this conclusion was based in part on the substantial evidence submitted by Hyundai with regard to practicable, alternative sites. See SEC v. Chenery Carp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947) (basis for administrative decision “must be set forth with such clarity as to be understandable”).

While the Corps rested its decision in part on Hyundai’s submitted alternatives analysis, it is apparent that the Corps’ decision was also based in significant part on the fact that the WEWP had already been approved under a section 404(b)(1) practicable alternatives analysis and that the Hyundai project would be designated for development under the WEWP by July 31,1996. In their November 17, 1994 decision approving the WEWP, the Corps anticipated a less stringent application of the alternatives analysis with regard to development projects on wetlands within the WEWP area that meet the WEWP’s criteria for development. AR, vol. 1 at 24. In accord with this anticipated, albeit not yet implemented, procedure for permitting projects within WEWP development criteria,- the Corps relied on its prior acknowledgement of the WEWP as the least damaging practicable alternative “to managing future [light industrial] development,” id. at 25, in finding the Willow Creek site to be the least damaging practicable alternative for Hyundai’s project. See id. at 26.

The Corps’ consideration of its prior acknowledgement of WEWP as the least damaging practicable alternative for managing industrial development in the campus/light industrial sector is consistent with the 404(b)(1) guidelines. A reasonable interpretation of 40 C.F.R. § 230.10(a)(5) is that such an analysis is appropriate where the proposed development complies with a land *1379 use law that the Corps and EPA have already determined to be the least damaging practicable alternative for accommodating such projects. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 887, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984) (requiring judicial deference to agency’s reasonable interpretation of ambiguous statute). Moreover, such an approach strikes a reasonable balance between the national interest in administering the Clean Water Act and Eugene’s interest in administering its land use laws. 2

Section 230.10 also allows a more flexible procedural approach with respect to projects that the Corps deems to be less serious threats to wetlands. The Corps promulgates nation-wide permits for activities having “minimal impacts” on the waters of the United States. 33 C.F.R. § 330.1(b). One such permit is available for activities which fill no more than ten acres of wetlands. 33 C.F.R. Pt. 330, App. A ¶26. Where the activity displaces less than ten but more than one acre of water, the permittee must notify the Corps but may proceed with the project after 30 days unless otherwise notified by the Corps. 33 C.F.R. § 330.1(e).

While there are factors and concerns that point to this project’s impact on the subject wetlands, the Corps’ nationwide permit regulations, promulgated with the benefit of rulemaking procedures and agency expertise, suggest that any wetlands impact resulting from the fill of 10.4 acres is likely to be at the low end of the spectrum. Under 40 C.F.R. § 230.10, the proposed fill of 10.4 acres is close enough to what the Corps considers to be a “minimal” impact to warrant a more procedurally flexible alternatives review procedure. This authorized flexibility supports the court’s conclusion that the Corps did not abuse its discretion by basing its decision in part on the project’s conformance with the WEWP.

c. Obligation to Reinitiate Alternatives Analysis After Elimination of Phase III

Plaintiffs submit that the Corps was obligated to require an additional alternatives analysis after the Corps “deleted Phase III from consideration.” Plaintiffs’ Reply Brief (# 37) at 11. Plaintiffs’ position is that phases I. and II require less land and that sites that could not practicably accommodate all three phases could accommodate the first two.

As indicated above, Hyundai had the burden of showing clearly that there were no less damaging, practicable alternatives for achieving its overall project purpose. In order to meet this burden, Hyundai submitted substantial information supporting its contention that no other sites in the Eugene area could practicably accommodate a “large semiconductor facility” without more damage to the aquatic ecosystem than the Willow Creek site. Although the analysis of alternative sites in the Eugene area may have been premised to some extent on “Hyundai’s needs of 200 acres,” AR, vol. 4 at 1609, the Corps’ decision was ultimately based on the determination that no-alternative sites could practicably accommodate Hyundai’s overall project purpose. 40 C.F.R. § 230.10; AR, vol. 1 at 62.

As defendants stated at oral argument, complex development plans such as Hyundai’s are necessarily subject to modification. Unless a modification substantially alters the overall project purpose, the Corps should not be required to reinitiate an alternatives analysis. Furthermore, the need to reinitiate an alternatives analysis is diminished where project modifications have lowered the potential for adverse environmental impact, where that impact is close to what Corps regulations deem “minimal,” and where the proposed project is determined to be in compliance with applicable local land use laws. In light of these factors, the Corps did not act arbitrarily or capriciously by not *1380 requiring a new alternatives analysis after the elimination of phase III from consideration. 3

In sum, there is substantial evidence in the record that the Corps thoroughly' considered the alternative sites analysis submitted by Hyundai in addition to the Corps’ own prior analysis regarding WEWP alternatives. Given the substantial information in the record, it was not arbitrary or capricious for the Corps to conclude that “it has been clearly demonstrated that there are no available, practicable alternatives having less adverse impact on the aquatic ecosystem and without other significant adverse environmental consequences that do not involve discharges into “waters of the United States’ or at other locations within these waters.” AR, vol. 1 at 62.

2. Public Interest Analysis

The Corps’ general regulatory procedures require permit decisions to “be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity ... on the public interest.” 33 C.F.R. § 320.4(a). This public interest evaluation requires a “general balancing” of the project’s benefits and detriments, taking into account (1) “the public and private need” for the project; (2) “the practicability of using reasonable alternative locations and methods”; and (3) the extent and permanence of the beneficial and/or detrimental effects....” 33 C.F.R. § 320.4(a)(2)(i)-(iii).

Plaintiffs contend that “[a]ny public or private need for the proposed chip plant is outweighed by the public interest in protecting the wetland resource on the site.” Memorandum in Support of Motion for Preliminary Injunction or Summary Judgment (# 16) at 13. The Corps, of course, did not reach this conclusion, finding issuance of the permit to be

based on thorough analysis and evaluation of the various factors affecting the public interest; that there are no reasonable alternatives available to the applicant that will achieve the purposes for which the work is being constructed; that the proposed work is not contrary to the public interest as reflected in the comments of Federal, State and local agencies and the general public; that the proposed work is deemed to comply with established State and local laws, regulations and codes; that the issuance of this, permit is consonant with national policy, statutes, and administrative directives; and that on balance the activity is not contrary to the public interest. ...

AR, vol. 1 at 64.

Moreover, the decision document explicitly addresses. alternative sites (as described above); the minimization of wetland impacts through the elimination of phase III and the modification of the stockpiling plan; the effects on water, soil, and drainage; the effects on wildlife (including endangered and threatened species) and other biological characteristics; the effects on “human use characteristics” such as recreation, aesthetics, transportation, general safety, air quality, noise levels, cultural sites, economies, and adjacent private property owners; secondary and cumulative effects, including the prospective development of phase III; the comments of agencies, including the Fish and Wildlife Service, the Environmental Protection Agency, the Oregon Division of State Lands’, the Oregon Department of Environmental Quality, the Oregon Department of Fish and Wildlife, the Oregon Department of Transportation; and the comments of the public, including the Nature Conservancy and individuals who provided input via the 1200 comment letters and 200 public hearing testimonials. AR, vol. 1 at 20-62.

The Corps’ decision that issuance of the permit was in the public interest was based on a careful balancing of relevant public concerns and thousands of pages of public and agency input. Though it may have differed from plaintiffs’ opinion, the Corps’ decision that issuance of the permit was in the public interest was not arbitrary or capricious or in violation of applicable law.

*1381 8. Meaningful Public Comment

The regulations require the Corps to provide the public with an opportunity for “meaningful comment.” 33 C.F.R. § 325.3(a). Plaintiffs allege the Corps deprived the public of this opportunity by accepting and considering certain information submitted by Hyundai after the official close of the public comment period. This information, plaintiffs contend, was crucial in that it set forth Hyundai’s practicable alternatives analysis and proposed mitigation plan.

The public had ample opportunity for meaningful comment prior to September 5, 1995. The Corps provided an initial comment period from June 30, 1995 to July 25, 1995. The Corps held public hearings on August 20 and 26, 1995, and granted an additional comment period from August 26 to September 5,1995 for the submission of written comments into the hearing record. Although several citizens asked the Corps to extend the comment period an additional 30 days (AR, vol. 10 at 4969, 4978, 5003, and 5004 and vol. 11 at 5512), the Corps declined to do so. Ex. B to Plaintiffs’ Reply Brief (# 37). Nonetheless, the Corps stated at the public hearing that it would accept and consider public comment up to the time of the decision. AR, vol. 9 at 4296.

Despite these arguably mixed signals regarding the official close of the public comment period, the Corps received many written comments after September 5. Many of these comments concerned issues addressed in the materials submitted by Hyundai after September 5. For example, many written comments addressed the alternative sites and project purpose issues. See, e.g., AR, vol. 10 at 4830, 4927, 4929, 4945, 4968, 4972, 4995-96, 4994, 4998, and 5006. Others addressed wetlands mitigation issues. See, e.g., AR, vol. 10 at 4928, 4931, 4978, 4979, 4980, 4996-97, 5006, and 5027. And many comments reflected on the need for public input. See, e.g., AR, vol. 10 at 4810, 4846, 4927, 4934, 4974, 4975, 4976, 4979, 4992, 4993, 5003, and 5004. Moreover, the Corps explicitly responded to these public concerns in the decision document, see AR, vol. 1 at 50-62, stating that “[a]ll comments on this action received prior to the date of this document have been reviewed and considered in arriving at the decision addressed in this document.” AR, vol. 1 at 62.

It is appropriate to note that the permit decision process at issue here is not an official rulemaking procedure subject to the stricter notice and comment procedures under 5 U.S.C. § 553. Compare Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1404-05 (9th Cir.1995); Rybachek v. United States EPA 904 F.2d 1276, 1286 (9th Cir. 1990); BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 644-45 (1st Cir.1979) (noting that it is “perfectly predictable” that an administrative agency will collect new data during the comment period “in a continuing effort to give the regulations a more accurate foundation” and stating that “[t]he agency should be encouraged to use such information in its final calculations without thereby risking the requirement of a new comment period”), cert. denied, 444 U.S. 1096, 100 S.Ct. 1063, 62 L.Ed.2d 784 (1980). Rather, the Corps’ purpose here was to determine whether Hyundai’s permit application met relevant legal standards under the Clean Water Act, the National Environmental Policy Act, the West Eugene Wetlands Plan, the Endangered Species Act, and other state and federal laws and regulations. Public input was certainly important and helpful in enabling the Corps to fairly determine the permit application’s conformance with these existing legal standards. However, the opportunity to more thoroughly promote the public interest presented itself during the promulgation, rather than the application, of these legal standards. Thus, while the Corps’ decision may not have been conducted along the lines of an informal rule-making procedure, its procedures provided the public with ample opportunity for “meaningful comment.”

B. The National Environmental Policy Act

1. FONSI

The National Environmental Policy Act (NEPA) requires an agency to determine whether a proposed major federal action is likely to have a “significant” effect on all the human environment. 42 U.S.C. *1382 § 4332(2)(C). 4 If the agency determines the proposed action is likely to have a significant effect on the human environment, it must prepare a comprehensive Environmental Impact Statement (EIS) regarding the proposed action. If, on the other hand, the agency determines the proposed action is not likely to have a significant effect,, the agency need only issue a Finding of No Significant Impact (FONSI). In this case, the Corps issued a FONSI with regard to the issuance of the wetlands fill permit, and plaintiffs challenge this decision as arbitrary and capricious.

Whether an effect is “significant” is determined by considering the “intensity” and “context” of all the proposed action. 40 C.F.R. § 1508.27. Regulations provide that an agency “should” consider the following factors, among others, in determining the “intensity” of a proposed action:

(3) Unique characteristics of the geographic area such as proximity to ... wetlands. ...

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) the degree to which the possible effect on the human environment are highly uncertain or involve unique or unknown risks.

* * * * * *

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

* * * * * *

(9) The degree to which the action may ' adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

40 C.F.R. §§ 1508.27(b)(3), (4), (5), (7), and (9).

In the Ninth Circuit, an agency’s FONSI must be upheld if the agency has taken a “‘hard look’ at the environmental consequences and has based its finding on a ‘reasoned evaluation of the relevant factors.’” Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-74, 109 S.Ct. 1851, 1859, 104 L.Ed.2d 377 (1989). Moreover, it is proper for the Corps to consider the degree to which compensatory mitigation requirements are likely to offset otherwise adverse effects. Friends of Payette v. Horseshoe Bend Hydroelectric, 988 F.2d 989, 993 (9th Cir.1993); see also Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985) (mitigation “need not completely compensate for adverse environmental effects” in order to justify a FONSI).

The administrative record is replete with information bearing on the impact of the proposed project on Willow Creek wetlands. The Corps addressed wetlands-related concerns expressed by the Fish and Wildlife Service, AR, vol. 1 at 24r-25; the Environmental Protection Agency, AR, vol. 1 at 27; the Nature Conservancy, AR, vol. 1 at 48-49; and private citizens, AR, vol. 1 at 53-55 and vol. 10 at 4928, 4930-31, 4973, 4980, 4996-98, 5013, 5019, and 5027-28. The Corps’ thorough consideration of the project’s impact on wetlands is reflected, among other places, in its findings regarding “Special Aquatic Sites”:

The Wetland Evaluation Technique was used to analyze the wetland functions and values. Additional studies were used to refine the results of the original analysis.

The wetlands are predominately precipitation driven, the result of a highly impermeable clay layer near the surface which creates seasonal ponding. The presence of the clay layer inhibits deep groundwater recharge, but some groundwater discharges occurs [sic] in the form of springs and seeps- In general, adverse impacts to flood flow alteration, sediment stabilization, and sediment/toxic retention will *1383 be offset by the stormwater management plan and on-site wetland mitigation.

The project will impact 10.4 acres of wetland and require the relocation of 2,050 feet of drainage. The drainage will be replaced with 3,400 feet of new stream channel. The new channel will be routed along the northern edge of the mitigation site. As mitigation for the unavoidable wetland impacts, the applicant will restore 13 acres. and enhance 6.9 acres of wet prairie wetland. In addition to the wetland mitigation, the 1.4 acre stock pond will be enhanced to increase its habitat value, and a 25 foot wide, vegetated buffer will be planted alont Willow Creek Road at the eastern boundary of this site.

AR, vol. 1 at 10.

Plaintiffs have submitted several expert declarations in support of their contention that the Corps acted arbitrarily and capriciously by ignoring certain shortcomings in Hyundai’s proposed mitigation plan and by failing to assess certain potential impacts on Willow Creek wetlands and aquatic habitat. Mary H. O’Brien is a botanist and staff scientist for the Environmental Research Foundation and Hells Canyon Preservation Council. Declaration of Mary H. O’Brien (# 18) at 1-2. Dr. O’Brien’s declarations, in summary, assert that the Corps did not adequately assess:

(a) ... interactions of multiple toxics;

(b) [interaction of toxic chemicals with acids; and

(c) toxic, acid, and cumulative impacts on wetlands-speeific wildlife, plants (other than Lomatiium bradshami), and inter-species relationships likely to be present in the Willow Creek Wetlands and Willow Creek Natural Area wetlands.

Response of Mary H. O’Brien to HEA’s Memorandum in Opposition to Wood Plaintiffs’ Motion for Preliminary Injunction or Summary Judgment (# 39) at 10.

Plaintiffs have also submitted declarations of Thomas Pringle. Mr. Pringle, owner of Emerald Wetland Consulting, declares that the Corps inadequately assessed the following:

(a) the possibility that Hyundai will not permit prescribed burning or that prescribed burning will otherwise be unfeasible or ineffective;

(b) the possibility that the use of heavy equipment will result in soil compaction;

(c) the project’s effect on stormwater runoff and groundwater diversion; and

(d) the project’s effect on rare plants, including Lomatiwm bradshawii

Supplemental Declaration of Thomas Pringle (# 40); see also Declaration of Thomas Prin-gle (#27).

Professor John Corliss is a member of the Soil Science Society and an Assistant Professor of Soils at Oregon State University. Declaration of John Corliss (# 19) at 1-4. In general, Professor Corliss’s concerns relate to the alleged inadequacy of the proposed method for long term collection of hydrological data. More specifically, Professor Corliss contests the adequacy of the DRAINMOD system 5 used for collecting and characterizing water source and flow data. Supplemental Declaration of John Corliss (# 44).

Finally, Professor Paul C. Engelking is a Professor of Chemistry at the University of Oregon. Professor Engelking, in general, challenges the scientific methodology of th