Sierra Club v. Strock

ORDER SUPPLEMENTING COURT’S ORDER OF MARCH 22, 2006

HOEVELER, Senior District Judge.

THE COURT has before it the question of what further relief, if any, should be granted to Plaintiffs in light of the Court’s conclusions that the Defendants had committed multiple violations of the Administrative Procedures Act (“APA”), 5 U.S.C. § 706 ; the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.; the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.; and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.

1

These violations occurred in relation to the issuance of CWA § 404(b) permits in April 2002 to nine private corporations

2

for the destruction of approximately 5,400 acres of wetlands in order to remove the underlying limestone for processing into cement, concrete blocks, and other products. The Court’s Order granting summary judgment for Plaintiffs found that Defendants, the United States Army Corps of Engineers (“Corps”) and United States Fish and Wildlife Service (“FWS”), had made numerous decisions lacking a rational basis and had failed to consider all relevant factors in their permitting decision; further, the Court found that the record in this case prior to issuance of the permits compelled the conclusion “that- the permits should not have been issued.”

Sierra Club v. Flowers,

423 F.Supp.2d 1273, 1379 (S.D.Fla.2006). The Defendants were directed to prepare a legally sufficient Environmental Impact Statement (“EIS”), i.e., a supplemental EIS (“SEIS”), and to engage in formal consultation regarding the impact on protected species, at a minimum. As will be further detailed below, the Court now has concluded — based upon the additional information presented by the parties — that not only should the permits not have been issued in April 2002, but also that these permits must be set aside today. The following findings therefore supplement and affirm those in the Court’s Order entered March 22, 2006, reported at

Sierra Club v. Flowers,

423 F.Supp.2d 1273 (S.D.Fla.2006).

I. INTRODUCTION

The Court’s Order granting summary judgment for Plaintiffs requested briefing from the parties to assist the Court in determining an appropriate remedy in light of current developments in the case.

3

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Because the Intervenors (members of the limestone mining industry) alleged that they faced a significant disruption in their mining businesses if the Court were to determine that a prohibition against further mining was appropriate, the Court granted their request for an evidentiary hearing. The Court also participated in a view of the. area by helicopter, and visited representative sites on the ground to more thoroughly evaluate the scope and context of the mining activities and their impacts.

4

The Court witnessed mining activities proceeding at that time (and already had learned that the Corps had taken no action to limit any of the mining activities during the period of supplemental environmental analysis ordered by this Court).

5

During a six-month period spanning from mid-June through December 2006,

6

the Court heard extensive argument from the parties and received a total of 32 days of testimony

7

and approximately 440 exhibits. During the hearing, the Court frequently announced its intention to learn as much as possible about the facts of this case and to hear all of the evidence.

8

In addition, the Court permitted the parties

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to file post-hearing briefs, which total nearly 300 pages. The Court has carefully studied all of these materials. While the Defendants and Intervenors have urged this Court to accept that the Defendants’ ongoing supplemental environmental review is proceeding properly, the Court has significant doubts in light of the evidence regarding continuing violations of governing regulations.

Shockingly, the Court learned for the first time during the evidentiary hearing, in June 2006, that benzene, a carcinogen,

9

had been detected as early as January 2005 in the water being pumped from the Biscayne Aquifer (“Aquifer”), “the primary source of drinking water for the Miami-Dade County area.” AR1028,

10

p. 4. The contamination was found in the area where limestone mining, which uses explosives

11

to remove the limestone from the Aquifer, is proceeding pursuant to the challenged permits. The contamination was so significant

12

that Miami-Dade County’s Water and Sewer Department (“WASD”) (the agency responsible for the delivery of drinking water for the County) shut down seven of the fifteen production wells which draw water from the Aquifer in that area, known as the Northwest Wellfield (“Well-field”), and pump it to water treatment plants several miles away.

13

More than two years after the initial contamination incident,

14

Miami-Dade County’s Department of Environmental Resources Management (“DERM”), the agency responsible for protecting the Wellfield, announced that it could not eliminate the mining-related blasting as a source of the benzene.

15

DERM’s report concluded that the

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two reported contamination periods (January 2005 to February 2006, and a second episode beginning in August 2006) were

not

caused by several other potential sources.

16

Despite protestations to the contrary, it appears likely that the Corps-permitted mining activities, specifically the blasting used to dislodge the limestone

17

from the Aquifer, are a source of the benzene. A significant portion of the mining occurs in this same Wellfield where the contamination was discovered — some of the active mining operations are less than 3000 feet from the production wells. The Court need not determine conclusively

18

whether

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the benzene originated from mining-related blasting as the contamination itself (and the Corps’ failure to treat it as significant) is sufficient to expose the Corps’ ongoing violations and dereliction of their duties under the CWA, NEPA, and APA.

19

When the Court questioned the Defendants’ primary witness as to why the benzene contamination had not been included in the report of the Corps’ “Three Year” review required by the permits,

20

his response was: “[W]e don’t have any clear indication from the County that it’s a problem.” Tr. 2776 (John F. Studt).

21

' The Corps’ shifting of -responsibility to the County,

22

combined with a complete failure to advise not just this Court (during the pendency of these proceedings) but

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also the public as to the contamination of the Wellfield by benzene and the potential connection to the mining activities,

23

eliminated the possibility of meaningful public participation required by NEPA and the CWA.

24

In summary, the Corps’ lack of concern about the benzene contamination represents a failure to fulfill its legal obligations to conduct the agency’s permitting activities with transparency.

25

This is just one example of the many errors made by the Corps in failing to provide accurate information for public assessment and review throughout the permitting process.

26

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Defendants’ lack of transparency and clarity in the permitting process also have made the “public interest” issues

27

difficult to grasp in this case. It is impossible to discern precisely what is at issue under these permits with respect to the number of acres to be mined, the precise locations and types of mining impacts at any given point in time, and the total length of time during which the mining activities may proceed.

28

Defendants rely on the permit-tees to report the number of acres mined and wetlands impacted, but the permittees use different descriptive terms than those used by the Defendants — raising a question as to whether there is or could be any meaningful monitoring to ensure the accuracy of the reporting of impacts.

29

The Defendants offered very little

30

to support their untenable position that the alleged benefits to the economy outweigh risks of environmental harm from the continued mining.

31

Nor is it an .easy task to test the Intervenors’ arguments that there are in

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sufficient alternative sources of limestone to replace the rock being harvested under these permits, and that any reduction in mining will' be devastating to the mining companies,

32

their employees, and the population in general.

33

Without an accurate baseline' against which to measure the planned future mining impacts, and in light of the widely varying mining production levels of the different permittees, it is difficult to assess whether there might be alternative sources for some of the mining activities for at least some period of time.

34

As noted in this Court’s earlier Order, the Court’s duty is to “immerse” itself in the evidence and ■ determine whether the agency decision was rational and based on consideration of the appropriate factors. The Court has endeavored to understand the 'full extent of the scientific evidence regarding the conditions of the Aquifer and its vulnerability to contamination.

35

From a review of the evidence, the Court has understood the primary message to be essentially undisputed:

36

the deep, vast quarry pits left behind from the mining

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activity expose the Aquifer (and the drinking water drawn therefrom by the pumps in the Wellfield) to a greater risk of contamination than if the pits were not present.

37

Regardless of whether the existing or planned municipal water treatment facilities will be able to treat those incidents of benzene contamination which already have occurred, or any potential future contamination by benzene or pathogens such as Cryptosporidium or giardia, it nevertheless remains an exceedingly significant occurrence that a previously pristine Aquifer has suffered these grave problems. The Court finds that the evidence clearly establishes that the CWA and ESA compel denial of these mining permits, and also that the Corps’ governing regulations, as well as the intent and letter of NEPA and the APA have been violated by the Corps’ issuance of these permits.

38

The principles governing judicial review of agency actions direct that the Court approve an agency decision even if the Court disagrees with the agency,

39

as long as the agency’s conduct is compliant with the law, i.e., is not “arbitrary, capricious, an abuse of discretion, or otherwise not. in accordance with law, or without observance of procedure required by law.” 5 U.S.C. § 706 (2)(A).

40

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However, “[t]he failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct,”

Simmons v. Block,

782 F.2d 1545, 1550 (11th Cir.1986),

41

and subjects the agency action to reversal according to the APA. 5 U.S.C. § 706 (2)(a).

It appears that the primary issue in this case from the Defendants’ perspective may be the question of whether there were other available sources of readily accessible limestone outside the permitted area,

42

rather than a focus on the impacts on wetlands and the Aquifer.

43

This conflict

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in the Corps’ approach exemplifies the concern expressed by Senator Muskie thirty-five years ago that the Corps, “a mission-oriented agency, is not equipped to evaluate the environmental impact of dredging activities [and, indeed] would do a disservice to their mission if they would try to act as environmental protectors.”

44

Sierra Club,

423 F.Supp.2d at 1351 n. 219

Ociting

117 Cong. Rec. 38854 (1971) (statement of Senator Muskie, during Senate Consideration and Passage of S. 2770, debating whether the Corps or EPA should have regulatory authority under the CWA)).

The Court’s impression, gleaned from the record prior to issuance of these permits, and subsequently confirmed by review of the supplemental administrative record and evidence before the .Court, is that the Corps was driven by a sense of predetermination

45

and an urgency

46

which compromised the , environmental analysis Defendants are required to perform. It has been evident throughout this process that the Corps has every intention of continuing to approve mining in this area, and that the Intervenors (permittees) are eager for such approval.

47

The Corps’

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persistence provides further support for this Court’s prior findings that the Corps violated NEPA by failing to consider fully the “no mining” or “curtail future mining” alternatives

48

when it approved this mining plan. The Corps also violated the CWA when it failed to presume that practicable,

environmentally preferable

alternatives exist, as required by the CWA,

49

and instead readily approved the comprehensive mining plan.

The theme of predetermination also is evident in recent submissions from the Defendants; in their post-hearing brief, the Defendants state that any “adverse impact to the public interest [caused by vacating these permits] is

unnecessary,

since the Corps needs only a limited time (nine months) to complete its supplemental NEPA analysis.” Docket No. 350, p. 32 (emphasis added).

50

This implies that the Corps has no intention of stopping these environmentally damaging activities, despite this Court’s sweeping condemnation of the basis for these permits and the mounting evidence that the Aquifer has been irreversibly contaminated.

51

In three decades of federal judicial service, this Court has never seen a federal agency respond so indifferently to clear evidence of significant environmental risks related to the agency’s proposed action.

52

It may be that the power of “economics”

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(i.e. financial profit to be gained from further production of building materials) unduly influenced the Corps. The events preceding the issuance of the EIS and the Record of Decision (“ROD”), specifically when the Corps seemed to wilt in the presence of pressure for approval of the permits, suggest such a conclusion. 423 F.Supp.2d at 1287-88 .

53

It now appears that even the local governmental agencies have yielded, perhaps as a result of increasing pressure from the mining eompa-nies or others.

54

Recently, the County restarted some of the production wells which had been shut down more than two years ago due to benzene-related contamination issues.

55

CAP, p. 5. Under the presumption that benzene will continue to be found, the County appears to have conceded that upgrades to the water treatment plant which handles the majority of the County’s drinking water are necessary

56

in order to prepare for the perhaps inevitable reclassification of the Wellfield

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from “groundwater” to “groundwater under the direct influence of surface water” (“GWUDI”)

57

by federal and state authorities. Even if the water treatment plants are able to treat the raw water for the anticipated amounts of benzene, it is nevertheless of grave concern that benzene will now regularly affect a previously pristine Aquifer.

58

The ability to cure a problem does not justify its creation. It is improper for these risks to be imposed solely on the public, including the risk that the public will have to pay a substantial sum to upgrade the water treatment facilities, particularly when the private sector earns enviable profits on the harvesting of these non-renewable natural resources.

Having fully considered all of the evidence, as well as the administrative record before the Court — including the Supplemental Administrative Record (“SAR”),

59

the Court concludes that there is no reason to disturb the Court’s earlier findings regarding the failure of the Defendants to comply with their duties to the public. It also appears that the basis for each of the Court’s previously expressed concerns has been validated

60

and these permits must be set aside until completion of the SEIS. In sum, the Court concludes that the Corps failed to give appropriate weight to the public’s need for reliable freshwater as compared to the private need to continue mining this specific limestone and any larger public need for this limestone (instead of limestone from other sources). The Court’s decision to set aside these permits is compelled by Defendants’ failure to fulfill their legal duties to protect our natural aquatic resources and habitats.

II. DETERMINATION OF AN APPROPRIATE REMEDY

For more than sixty years the APA has directed the courts regarding the pre

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sumed remedy for unlawful conduct by federal agencies: “[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or without observance'of procedure required by law.” 5 U.S.C. § 706 (2)(A), (2)(D).

61

This standard of review also has been specifically applied to each of the environmental statutes at issue herein,

Sierra Club,

423 F.Supp.2d at 1284 , including both of the substantive environmental statutes, the CWA and ESA, along with NEPA.

62

Agency decisions are guided by statutes as well as by regulations. Agency regulations may be viewed:

as an attempt to solve various problems of “market failure” identified by economists .... [Regulation is frequently justified by the need to compensate for the fact that the price of a product does not reflect costs that its production and use impose on society. For example, in an unregulated market the price of steel will not reflect the “externalities” (sometimes -.referred to as “spillover costs”) that its manufacture' imposes in the form of air pollution. Neither the manufacturer nor the consumer of its products bears these costs. As a result, the demand for steel will be greater than it should be, because it is higher than it would be if buyers had to pay for the cost of its adverse side effects.

Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, Matthew L. Spitzer, Administrative Law and Regulatory Policy: Problems, Text, and Cases, Fifth Ed. (2002) (“Administrative Law”), pp. 5 — 8.

63

A prime goal of the APA was to strengthen judicial review of agency decisions — to ensure that agencies were considering all the relevant facts, listening to diverse viewpoints from affected interests, consistently obeying their own regulations, and explaining their decisions as a “reasoned exercise of [the agency’s] discretion in a given case.”

Administrative Law,

p. 416.

64

These concerns are the foundation of the “hard look” doctrine, discussed in

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Marsh v. Oregon Natural Resources Council,

490 U.S. 360, 374 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989), and applied in this Court’s March 2006 Order.

65

The growth of the regulatory role of the national government has provided a multitude of reported decisions addressing the conduct of federal agencies in rulemaking and other contexts. Despite this body of precedent, the Court has not found specific guidance addressing 'the precise question in this case. The most favorable reading of the precedent presented by the Defendants and Intervenors to support their arguments against setting aside these permits is that this Court has discretion to decline to do so. Defendants and Interve-nors do not cite any precedent compelling this Court to authorize the continuation of activities under permits the Court believes should never have been issued due to a failure to properly consider adverse environmental impacts.

In its March 2006 Order, this Court remanded these permits without immediately vacating them.

66

Defendants and In-tervenors urge this Court to maintain that status — despite evidence that Defendants’ violations, and consequent environmental harms from the improperly permitted mining activities, are continuing. Intervenors specifically promote the relatively new concept labeled “remand without vacatur” (“RWV”),

67

and suggest that courts should

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apply RWV whenever possible.

68

Several reported decisions of the United States Court of Appeals for the D.C. Circuit employ RWV — none of which involve an environmental permitting issue.

69

More importantly, the Eleventh Circuit has not adopted RWV. Intervenors rely upon, and extensively cite, a law review article advocating the adoption of the following recommendations issued by the American Bar Association ten years ago:

The Administrative Procedure Act should be construed, or if necessary amended, to permit [the courts to exercise discretion and order RWV] ... In exercising this discretion, a reviewing court should normally strike the balance

in favor of vacating the agency’s action,

unless special circumstances exist ... [such as] where, in the context of the proceeding as a whole: (a) the agency’s error

did not preclude fair public consideration of a central issue

in a rule-making

or a fair hearing on the necessary findings

in an adjudication or other agency proceeding; (b) the court finds a substantial likelihood that the agency, after further consideration,

will be able to remedy its error and reach a similar overall result on a valid basis;

and (c) the [Plaintiffs’] interest in obtaining relief from the agency’s decision

is clearly outweighed

by the substantial and adverse impact that vacation of the agency’s action would have on [Intervenors] who over time have reasonably relied on the agency action being remanded ...

[a]nd such impact cannot be remedied after such interim period.

Levin,

supra

n. 67, at 387 (citing American Bar Association Recommendation No. 107B (August 1997)) (emphasis added). The ABA’s recommendation, therefore, supports, in principle, the Court’s decision to set aside these permits. The ABA’s recommendations reveal a presumption of vacation (“a reviewing court should normally strike the balance

in favor of vacating the agency’s action

”), and none of the special exceptions to this presumption apply — the Corps’ actions precluded the public’s “fair consideration” of the permitting decision; the Court does not believe the Corps can remedy its error; and the Plaintiffs’ (and the public’s) interest in obtaining relief from the effect of these permits is not “clearly outweighed” by the impact on Intervenors (or the public) of setting aside these permits. It appears that this Court’s consideration of irreparable harm under the ABA’s recommended guidelines should weigh heavily against the continuation of activities currently resulting in substantial environmental damages that “cannot be remedied after such interim period” (e.g., contamination of the Aquifer, the death of wood stork due to the destruction of their foraging habitat, and the continued devastation of wetlands).

70

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In essence, Defendants and Intervenors urge this Court to engage in an “equitable” balancing and to take the extraordinary step of not setting aside, or vacating, the very permits which this Court long ago concluded should not have been issued.

Sierra Club,

423 F.Supp.2d at 1380 .

71

The balancing test proffered by Defendants and Intervenors requires the Court to evaluate both the seriousness of the agency’s deficiencies and the disruptive consequences of an interim change (by the Court) that may later be changed (by the agency).

Chamber of Commerce of the United States v. SEC,

443 F.3d 890, 908 (D.C.Cir.2006). Since this Court’s prior Order already found serious deficiencies in the Defendants’ actions,

72

the first part of the test cannot be satisfied and, because the test includes two parts (note the use of the conjunction “and”), the Defendants’ and Intervenors’ arguments must fail.

73

In summary, the Court finds the Interve-nors’ arguments unpersuasive and the cases they cite inapposite. This Court is not inclined to suggest a new standard for administrative agency review in this Cir-euit, particularly when the theory rests on such a slender reed, and when application to the facts of this case would merely result in the expansion of benefits already enjoyed by the private actors, including years of profits to which they might not otherwise have been entitled.

74

As noted above, there is little guidance specifically addressing these issues; the parties have not cited any, and it is likely that no factually similar eases exist. The Court’s cursory review could not identify another community in the United States in which the Corps permits rock mining and blasting activities on top of a major municipal water source, and the parties have not presented such an example. Further, this Court’s search reveals a lack of reported cases sharing a similar posture to this case: where the Court’s ruling on remedies is occurring after five years of mining (i.e., half of the “10 year” term of these permits) and more than a year after summary judgment was awarded to Plaintiffs — with a delay due to extensive eviden-tiary hearings on potential remedies.

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Therefore, the Court will briefly review the fundamental principles of judicial review, specifically focusing on how they apply to the regulatory violations at issue.

To answer the question of what relief is appropriate to award Plaintiffs today, July 2007, in light of their success on summary judgment last year, the Court first must consider the question in light of the earlier determination that these permits should never have been issued in April 2002. The Court must consider, within limits,

75

current information in making a decision about remedies. In essence, this consideration requires the Court to determine whether a re-issuance or after-the-fact validation of those permits is supported by the record today. Rather than merely looking back to April 2002, when the permits were originally issued, the arguments offered by the parties instead take into account the intervening five years’ worth of developments — including modifications to the permits.

76

All parties have asked this Court to rule based upon that updated information. During the hearing, counsel for Defendants stated that “the Corps is waiting for any guidance from the Court. If the Court ruled right now that mining should not continue, then the Corps would not persist in allowing the mining to continue.” Tr. 2648.

77

The Court is mindful not to be tempted by the Defendant’s invi

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tation, for this Court’s role is not to force a specific substantive result from an agency. This Court does, however, strongly recommend that the Corps take note of what this Court has described, in many pages, as an inevitable conclusion of the evidence presented: these permits must be set aside, at least until the SEIS is completed.

A court’s blind adherence to the principles of agency deference, particularly when faced with the agency’s own acknowledgment of serious deficiencies,

78

is contrary to the doctrine of separation of powers.

79

To be clear, this Court is not dictating what the agency’s future decision should be; rather this Court has determined that the agency has failed to perform its important duties.

80

The principles

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of agency deference, as stated in

Chevron U.S.A., Inc. v. NRDC.,

467 U.S. 837, 862 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), require courts to accord substantial deference to the federal agencies in interpreting their regulations. However,

courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate their responsibility if they did not fully review such administrative decisions.

NLRB v. Brown,

380 U.S. 278, 291-92 , 85 S.Ct. 980 , 13 L.Ed.2d 839 (1965)

81

. “[CJourts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.”

Sierra Club v. Martin,

168 F.3d 1, 8 (11th Cir.1999)

82

(quoting

Simmons v. Block,

782 F.2d 1545, 1550 (11th Cir.1986)). When the terms of a regulation are unambiguous, no deference is given to agency action which contradicts the regulation’s plain language.

Thomas Jefferson Univ. v. Shalala,

512 U.S. 504, 512 , 114 S.Ct. 2381 , 129 L.Ed.2d 405 (1994) (“[W]e must defer to the [agency’s] interpretation unless an ‘alternative reading is compelled by the regulation’s plain language ....’”) (citations omitted). Clearly, deference is not absolute but rather admits of exceptions for those rare occasions when agencies fail to abide by their own regulations or statutory directives, as they do here.

83

This is not to suggest that agencies must execute their duties flawlessly — although it is a worthy aspiration, nor that agencies

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should be discouraged from acknowledging past errors in judgment, i.e., such admissions need not subject the agency to a total lack of trust; but it must be that our system of government permits the courts, on those rare occasions when judges are faced with evidence that an agency’s orientation or conduct is contrary to its Congressional mandate, to peek carefully behind the curtain of deference and set aside certain agency actions. Courts are justifiably reluctant to approve environmental permitting decisions when the record demonstrates that those decisions were based upon assumptions rather than upon an independent study of the issues. When the Corps planned to renew shell dredging permits in Louisiana’s Lake Pontchartrain which would have “affect[ed] over two million acres of ecologically fragile water and wetland ... [and might have] also interfere^] with the process of delta-building ... and with the health of living reefs and the formation of new reefs,” a federal appellate court criticized the Corps for arguing that “damage to the [bottom dwelling life in Lake Pontchartrain already] was completed in the 1950’s and so the effects of further [shell] dredging cannot be considered significant.”

Louisiana v. Lee,

758 F.2d 1081, 1085-86 (5th Cir.1985) (vacating dismissal of action challenging failure to file EIS and noting that while agency can rely on mitigating effects of permit conditions when deciding whether EIS is required, significant environmental effects were at issue).

84

Twenty years later the Corps’ arguments are strikingly similar. Noting that the wetlands to be mined in the next year and a half had “largely been impacted already by some part of that sequence of mining or have a significant amount of Melaleuca,” Tr. 3073 (Paul Sou-za), Souza testified that there would not be any adverse effects from the mining in the near future.

85

Defendants fail to recognize that their own actions — the permitting of additional clearing of vegetation and continued destruction of wetlands — are the basis for the argument that the area is suitable only for mining, an argument which this Court already has rejected.

Sierra Club,

423 F.Supp.2d at 1295 n. 49, 1330, 1373 n. 275 (rejecting “already degraded wetlands” arguments). Such self-generating justification for further destruction is simply improper in the context of the facts of this case, and in light of the Defendant’s neglect to administer their important regulatory duties. The Corps’ failure to perform an adequate environmental analysis before it issued these permits caused the present situation; acres of wetlands — perhaps what would have been suitable foraging habitat — are now denied protection by the Corps because they have “been impacted already.” Tr. 3073 (Sou-za).

The Court previously found that the Corps violated multiple provisions of NEPA — e.g., failing to adequately evaluate the adverse impacts of the proposed mining on Wellfield contamination, on wood stork habitat, and on seepage — ■ largely due to a reliance on insufficient data and outdated analyses. The Corps also failed to properly consider mitigation,

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and was deficient in planning-for littoral shelf construction. They failed to ensure that the targeted area for mitigation and restoration would be acquired, and they improperly balanced the applicant mining companies’ needs against the long term productivity of the environment.

Sierra Club,

423 F.Supp.2d 1273 . Similarly, the Court identified numerous violations of the CWA by the Corps, including a failure to properly define the project purpose — a deficiency which resulted in their failure to apply the proper presumption against locating activities in wetlands.

86

That improper definition rendered the Corps’ analysis of practicable alternatives incomplete. This compounding of errors, in part due to the Corps’ favorable view toward proposals from the permit applicants,

87

consistently permeated the permitting process.

To date, Defendants have done little to demonstrate their consideration of the public’s viewpoint, in violation of the CWA, 33 U.S.C. § 1344 (a), and the Corps’ regulations implementing the CWA, see 33 C.F.R. § 327.4 . “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” 40 C.F.R. § 1500.1 (b).

88

“NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.”

Marsh v. Oregon Natural Resources Council,

490 U.S. 360, 371 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989).

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Prior to the passage of [NEPA], environmental considerations were systematically underrepresented in the federal agency decision making process. Consistent with traditional notions of natural resource allocation, the benefits of development were overstressed and less environmentally damaging alternatives for meeting program objectives were often given limited consideration. NEPA declares a broad national commitment to protecting and promoting environmental quality. This commitment is implemented by focusing government and public attention on the environmental effects of proposed agency action; the Act ensures that important environmental consequences will not be ‘overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.’ In short, NEPA requires that the evaluation of a project’s environmental consequences take place early in the project’s planning process.

North Buckhead Civic Ass’n v. Skinner,

903 F.2d 1533 , 1539-40 (11th Cir.1990) (footnotes omitted).

89

The contamination of the Aquifer, the death of wood storks, and the destruction of hundreds of acres of wetlands by devegetation and demucking appear to be the regrettable outcomes of the Corps’ failure to gather complete information before issuing these mining permits in 2002; these permits must be set aside before further harm is done.

Having previously found “substantial procedural or substantive reasons,”

Skinner,

903 F.2d at 1539, to grant summary judgment for Plaintiffs, and failing to find anything but support for that conclusion in the record amassed since that Order, including evidence of ongoing violations, this Court is compelled to set aside these permits until completion of the SEIS. However, this Court is very mindful of the Intervenors’ arguments regarding the potentially catastrophic effects of limiting their ability to retrieve limestone, a nonrenewable natural resource, from below the surface of their private property. Indeed, this Court extensively weighed the Intervenors’ claim, particularly with respect to the employees of permittees’ companies who may be facing unemployment and who have not enjoyed the past profits to the same extent as the corporations

90

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themselves.

91

For that sole reason, and with the explicit statement that this decision should not carry precedential value because it is driven by unique circumstances,

92

the Court has crafted a partial stay of this Order, described in more detail below, which will allow all of the per-mittees to continue to mine under these permits until the SEIS is completed, with certain restrictions on three of the mining operations.

93

The Defendants also claim that the impact of vacatur during the remand period will have a “severe” effect on the Florida economy, causing a “major economic disruption” and “disruption to critical Everglades restoration projects.” Docket No. 350, pp. 5, 27. It appears that at least some of the Defendants’ broad predictions rest on debatable grounds.

94

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More • pointedly, the project to reinforce the Hoover Dike at Lake Okeechobee will use limestone that is not likely to come primarily from the area mined pursuant to these invalidated permits.

The Court maintains hope that the corporations and their employees will make appropriate adjustments, and that Everglades restoration work will not be significantly delayed because of the Court’s determination that this mining must be stopped. In fact, the Court has structured the remedy in an effort to provide the “gradual shift” noted in the “Strategic Aggregates Study,” prepared by consultants for the Florida Department of Transportation earlier this year:

Therefore, if there are to be closures, a gradual shift may allow time for the development of comparable new supplies and help mitigate the negative economic consequences that would otherwise burden the state, especially if the alternatives come from in state sources.

Strategic Aggregates Study, Part II, dated March 12, 2007, pp. 2-3. It must not be forgotten that limestone is a non-renewable resource,

95

and at some point under a future mining scenario, the rock reserves would be exhausted; each day that this mining proceeds under these invalidated permits fosters the expectation that mining will continue to be permitted in wetlands,

96

an expectation which cannot be fulfilled.

97

In summary, the Court has determined that these permits must be set aside until the Corps completes the SEIS. A partial stay of this Order is granted, solely on the basis of the Intervenors’ claims of a catastrophic result from a total prohibition of this mining; the stay will allow those min

*1215

ing operations to continue which are either taking place in non-wetlands or are located at a sufficient distance from the Wellfield that they pose a slightly lower risk of contamination of the production wells and municipal water supply.

98

III. THE PERMITS MUST BE SET ASIDE DUE TO THE CORPS’ FAILURE TO CONSIDER SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACTS OF THIS MINING

The Biscayne Aquifer “is the source of the most important water supplies developed in southeastern Florida,”

99

and its characteristics, including the fact that it is “highly transmissive,”

100

render it particularly vulnerable to the mining activities which the Corps has approved. Mining requires the complete removal of the surface, even if it is a protected wetland, to allow access to the limestone in the Aquifer which lies beneath the surface. The limestone is then extracted to depths of as much as 80 feet,

101

and sometimes more, below the surface — creating large quarry pits. The newly created quarry pits fill with water and become “lakes” which directly interact with the Aquifer. This direct interaction between the mining activities and the Aquifer may have been a significant factor in allowing the Aquifer to become contaminated with benzene, as discussed in further detail below.

The County operates fifteen public wells in the Northwest Wellfield which are located in the center of the area where the mining activities are occurring.

102

The Wellfield was originally conceived to be a “pristine” Wellfield. William Pitt, Chief of the Planning Section at WASD, testified that it “was envisioned that it would always be out at the western reaches of the county and that it would never experience any potential pollution from development, from different uses above the land surface and that type of thing.” Tr. 1206 (Pitt).

103

The Wellfield has been in service since the early 1980s and serves as the main raw water source for the John E. Preston Water Treatment Plant. CAP.

104

The wells in the Wellfield collectively draw water up

*1216

from the Aquifer (drawing up to the current permitted maximum of 150 million gallons per day (“MGD”)) to supply 40% of the County’s drinking water.

105

AR617, p. 5, AR1028, p. 5. The wells in the Northwest Wellfield are not screened, i.e., not enclosed in a protective casing, but rather are open to the raw groundwater in the Aquifer at a depth of approximately 40 to 70 feet. While the wells draw water from that depth primarily because that is the “most permeable” interval, they also draw in water from above the 40 foot depth. Tr. 1407 (Pitt). Once the wells draw up the water, the water is then delivered to a treatment plant several miles away. One of the County’s most important concerns is that the Aquifer not be subject to reclassification as “groundwater under the direct influence” of surface water (“GWUDI”)— such a reclassification (from the present classification as “groundwater”) would require a costly modification of the County’s water treatment facilities. AR1175 (Northwest Wellfield Watershed Protection Plan, prepared for the SFWMD by DERM, dated August 16, 2000).

106

A. Risks affecting the municipal water supply

Prior to issuance of the mining permits by the Corps, the County expressed its concern that continued limestone mining in the area of the Wellfield would trigger a GWUDI classification.

107

Despite this earlier position, and despite the recent incidents of benzene contamination, County

*1217

representatives Wilbur Mayorga of DERM, Tr. 4710, and Douglas Yoder,

108

Deputy Director of WASD, Tr. 4239, testified that mining presently does not pose a risk to the County’s drinking water.

109

DERM’s acting Director, Carlos Espinosa, also testified that DERM doesn’t believe that the Wellfield will be reclassified as GWUDI based on continued mining over the next 18 to 36 months. Tr. 5134 (Espi-nosa).

110

Miami-Dade County protects the quality of the Wellfield resource by enforcing protection zones around the wells; these zones, or setback lines, prohibit any activities from occurring within the area of the Wellfield determined to be most vulnerable to contamination of the production wells. When the County’s wellfield protection ordinance, Chapter 24-12.1, Code of Miami-Dade County, was enacted in 1985, it established protection zones based on the theoretical distance a pollutant might travel toward a production well during a specific number of days. AR1175, p. 6, 9.

The “travel time” protection zones were based, in part, on very generalized survival times of bacteria and viruses in soils and groundwater. The majority of pathogenic bacteria die off within an average of 10-30 days and viruses within 30 -100 days. Because very soluble chemical pollutants travel farther than microbiological pollutants and a few viruses can survive more than 100 days, the 210-day zone was included.

Id.

111

The ordinance imposes an absolute ban on all mining activities within a distance of 30-days travel time to the production wells. This prohibition is designed to protect the wells from contamination by those pathogens that could survive travel

*1218

ing from an origin point within the 30-day setback line to the production wells in the center of the Wellfield. As a precaution, the ordinance also bans mining activities from occurring deeper than 40 feet below the surface

112

within the 210-day line. SAR1323 (Risk Assessment and- Groundwater Modeling, prepared for DERM by CH2MHÍ11, October 2001).

113

According to County documents, several years ago a mining consultant

114

proposed a “theoretical 60-day travel time” setback which would allow mining below 40 feet at a location closer than the 210-day line;

115

the • 60-day

116

line was not modeled nor codified as a specific distance from the Wellfield.

117

The Corps embraced the “60-day” proposal when it issued the mining permits,

118

and imposed a “double cross-hatched area” condition, which denoted areas temporarily off limits to mining, in an attempt to address concerns that mining close to the production wells poses significant risks.

119

The prohibited area is

*1219

generally the same as the theoretical 60-day setback area.

120

While mining is permitted adjacent to the “double crosshatched areas,” Defendants’ Exh. 4, it remains prohibited within those areas.

121

In the late 1990s, while the Corps was preparing the EIS in this matter, the County was studying its Wellfield protection measures and recognizing that the protection zones were insufficient. More recent data and modeling suggested that pathogens and water traveled much more rapidly through the Aquifer to reach the production wells than the earlier studies (on which the ordinance was based) predicted. The County hired the United States Geological Survey (“USGS”)

122

to perform several field studies including tracer tests.

123

The USGS scientists and others determined that there are areas of the Aquifer, called preferential flow zones, through which water moves much more quickly than previously understood.

124

In fact, some of these zones coincide with the depth of the production wells in the Well-field. Tr. 5174 (Espinosa). Notably, the studies in 2003 revealed a much faster transmissivity in the Aquifer than expected. In one test, USGS injected red dye into the Aquifer using an injection well; the USGS then monitored various areas of the Aquifer, as well as the production wells, for the red dye. The red dye used to conduct the tracer test moved so rapidly through the groundwater of the Aquifer to the production wells, and the water treatment plant that public consumers received pink water that day before the utility shut down the pumps.

125

In light of the emerging field data from USGS and other

*1220

sources, the County hired a private consulting firm, CH2MHÍ11, to update their prior risk assessments for the County,

126

i.e., to recommend the extent of buffer zones necessary for efficient levels of protection.

127

Tr. 5118, 5120.

In early 2004, Plaintiffs hired Dr. Stav-ros Papodopulos, a groundwater hydrologist

128

, to analyze data available from four sets of tracer tests conducted in the Well-field.

129

Dr. Papadopulos determined that the tracer tests conducted to the west of the production wells, where mining under these permits is and will be taking place, were a better indicator than those tests which were conducted to the east of the production wells, particularly in light of the downgradient/eastward flow of groundwater in the Wellfield area and the likelihood that such downgradient affected the travel of potential contaminants in the groundwater.

130

Tr. 144 — 145. Dr. Papa-dopulos used a porosity-thickness product (“Nb”)

131

to calculate travel distances.

132

The reason that I analyzed for the product rather than for individual porosity

*1221

and thickness separately ... [is because] there may be some questions on what is the effective thickness of the aquifer through which most of the groundwater is flowing. So to avoid the question of whether the effective thickness is correct or not, I preferred to evaluate the product of thickness and porosity.

Tr. 124-25. These values ranged from a low of 1.33 Nb for the 2003 test conducted by the USGS, which implied that a larger protection zone was necessary, to a higher Nb of 10.3 for the test conducted in 1999 by DERM, which suggested that a smaller zone might be adequate. Tr. 125. Dr. Papadopulos then used these values to form his recommendations as to the appropriate protection zones (each of which would vary depending upon the daily pumping rate applied, i.e., 150 MGD or 225 MGD) based on a high Nb and a low Nb. See Plaintiffs’ Exh. 2.

I am a civil engineer. The civil engineer always views a safety factor.... If there is [a chance that the Nb could be] as small as that indicated by the 2003 test ... then the appropriate value to use was [the one derived from the 2003 test].

Tr. 145-46 (Dr. Papadopulos).

The Court finds the testimony of Dr. Papadopulos to be very persuasive; with more than four decades of experience, including several years’ familiarity with the facts of this case, Dr. Papadopulos was the only expert utilizing the most recent testing data from the Wellfield. Plaintiffs’ Exh. 2 and Exh. 5. Dr. Papadopulos testified that the existing setback lines are flawed because they are based on the introduction of a contaminant starting at the surface; that assumption is inappropriate in the context of mining pits because the pits are in direct contact with the production zone of the wells. Tr. 222, 523. Moreover, Dr. Papadopulos noted that the modeling done by CH2MHÜ1 did not include the preferential flow zones which are understood to be present within the Aquifer, and therefore greatly underestimates the amount of protection required. Tr. 161. Essentially, the relevant factors are the existing downgradient toward the production wells, the easterly flow of groundwater,

133

the porosity of the limestone in the Aquifer (before it is removed by mining), and the preferential flow zones. Dr. Papodolus testified that the County’s CH2MHÍ11 original model used a higher porosity than what is indicated by recent tests, and also only considered die-off of the Cryptosporidium pathogen rather than filtration or dilution, suggesting that the model’s prediction of 180 to 230-day pathogen travel times are inaccurate.

134

Tr. 161-62. Even when travel times are adjusted for the straining out and dilution of pathogens (instead of merely tracking the travel rate of a particle of groundwater), more distance is needed to protect the Wellfield from contamination than what is

*1222

reflected in the present 60-day protection zones.

135

The coalescing view that the setbacks were insufficient was expressed by a senior professional staff member of DERM’s, Dr. Susan Markley:

There has been some consciousness for a while, even prior to the publication of the USGS studies, that the study outcomes were going to suggest, because we know now that the water moves faster through layers of the aquifer than we thought it did before, that the travel time zones will be farther away.

Tr. 526 (Dr. Markley).

136

In a June 14, 2005, memo to the leadership of DERM

137

, Dr. Markley voiced her concerns surrounding the likely inadequate models and protective zones:

There is new evidence from local studies, and other studies elsewhere, that many past assumptions concerning transmission of water and particles through the aquifer were not correct. Generally, the emerging view is that past models do not adequately describe the physical attributes, transport characteristics, variability, and travel time— distance relationships.... [I]t is likely that published reports will conclude that highly transmissive zones are prevalent throughout the aquifer, and that groundwater and substances in it may move much faster between two points. There is capacity for particle removal, but potential is poorer than previously assumed .... It will be necessary to change the zones (and all consequent regulatory actions), ordinance, or some combination of both should it be determined that travel time- — distance relationships are different than previously simulated or measured.

Plaintiffs’ Exh. 24 (memo from Susan Markley, Chief, Ecosystem Restoration and Planning Division, to Carlos Espinosa, Deputy Director, and John Renfrow, Director, DERM, June 14, 2005). According to Dr. Markley, she received no response to her memo. “I didn’t get a specific response to this memo.... We didn’t have a meeting, which I was asking for. I didn’t get a written response to it.” Tr. 527. She noted in her testimony that then Director Renfrew’s memo to Joseph Ruiz, Assistant County Manager, on January 17, 2006, (which Dr. Markley had no part in drafting but appears to be based in part, on the concerns she had expressed months earlier), conveyed to County management that the Wellfield setbacks would have to be very large to assure that the regulatory requirements for protecting the groundwater from the influence of surface water were met and that it was unlikely that such action would be able to be accomplished.

The only witness who did not accept the larger protection zones in principle was Intervenors’ witness James Rumbaugh (who did not appear in person before this Court) but he had not carefully reviewed the most recent data, e.g., the USGS 2003 study, nor the articles discussing that data.

*1223

Deposition Tr. 31-33, 64-65. The Court has decided that the testimony of other witnesses, particularly that of Dr. Papado-pulos, presents a far more accurate assessment of the hydrogeologic conditions of the Wellfield and the risks of contamination posed to the Wellfield by these mining activities.

Despite the almost universal understanding that the Wellfield protections, on which these challenged permits are based, are inadequate,

138

the Corps has done nothing to increase the level of protection specified in these permits. The Corps ignored specific evidence presented by Plaintiffs in early 2004 that the Wellfield protections are “no longer accurate.” SAR1317 (Letter from NRDC to Corps, dated February 16, 2004).

139

The Corps previously had pushed for a rapid approval of these mining permits and did not wait for the County to complete its risk analysis

140

—even though the County had asked the Corps to postpone approval of the mining until completion of the studies.

Dade County believes the [EIS] that is being developed in response to a proposal for rock mining in the region, must not be completed with a recommendation to issue the General Permit until studies are performed which provide answers to the [questions of water quality protection of the water supply, adequate buffer between the lakes and the Northwest Wellfield (“NWWF”) to prevent reclassification to GWUDI, [and] quantity of water needed to meet the County’s future water needs].

*1224

AR477 (letter - from County Manager Armando Vidal to John R. Hall, Corps, May 13,1997).

The Corps’ ongoing disregard for this critical information violates several statutory and regulatory provisions. For example, the CWA specifically provides that unacceptable adverse effects on municipal water supplies are sufficient grounds for denial of a 404(b) permit. 33 U.S.C. § 1344 (c). The implementing regulations of the CWA also direct that the Corps consider water quality and water supply issues (as part of the “Public Interest Review”). 33 C.F.R. § 320.4 (a)(1)

141

. Additionally, the special nature of wetlands that perform water purification, 33 C.F.R. § 320.4 (b)(2)(vii), or natural drainage functions, 33 C.F.R. § 320.4 (b)(2)(iii), should be considered. State water quality standards must be followed in CWA permits according to 40 C.F.R. § 230.10 (b), and the Corps must consider the significánt degradation of water as well as the persistence and permanence of any risk to that water supply. 40 C.F.R. § 230.10 (c).

It appears that the County has determined that the best way to address the acknowledged inadequacies of the current wellfield protection zones, particularly since mining continues in the area, is to upgrade or replace the current water treatment plants in an effort to maintain the quality of the municipal water supply.

[T]he risk of concern is that the Well-field eventually may be designated ‘groundwater under the direct influence of surface waters’ (GWUDI) under future mine-out conditions, land use scenarios and projected Wellfield demands of 220 million gallons per day. A GWUDI designation of the Northwest Wellfield will mandate treatment upgrades to the Hialeah and Preston water treatment facilities to achieve the same level of treatment as surface water sources. [Data and modeling by our staff indicate] that the combined ‘60-day’ travel time area extends well beyond the 2000 land acquisition area. Furthermore, a preliminary risk assessment study conducted by County consultants indicates the ‘60-day’ area might not be sufficient to minimize the risk to the public from Cryptosporidium sp. Oocysts.... [T]here is sufficient information emerging to conclude that the amount of land necessary to be set aside as a protective buffer will be substantially greater than the areas currently controlled by regulation and owned by the County and may be unattainable due to the cost and ownership of the land. Even if a large buffer -area could be acquired, there is still no guarantee the public would be completely protected given the high uncertainty about the subsurface geology. Therefore, the most effective approach to provide assurance in protecting public health is to upgrade the Hialeah and Preston water treatment facilities, rather than solely relying on an expanded buffer area.

Plaintiffs’ Exh. 149 (Memo from John Ren-frow, Director, DERM, to Joseph Ruiz, Assistant County Manager, dated January 17, 2006, “Risk assessment of future rock-mining and land use activities in the Northwest Wellfield.”)

142

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Regardless of the recommendation to upgrade the water treatment plant, DERM insists that there will always be a minimum buffer area,

143

probably the current 60-day or 2500 feet, around the production wells themselves. Tr. 5202 (Espi-nosa).

144

In addition, DERM would like to take ownership of those lakes in the surrounding area — beyond the 60-day line-in order to protect the Wellfield in perpetuity. Tr. 5215.

145

As Dr. Markley has explained, “[a] treatment plant that addresses the Cryptosporidium issue in and of itself wouldn’t address ... some of these other concerns related to the travel time maps and ... all of the rest of the requirements of the code that depend on them.” Tr. 531 (Dr. Markley).

While DERM has reached a conclusion and sent its recommendation to the County Manager, DERM’s representative was unable to explain what actions WASD has recommended. Tr. 5200 (Espinosa).

146

According to correspondence dated March 17, 2006, from WASD’s current director, John Renfrow:

*1226

[WASD] is currently assessing the probable costs and financing mechanisms that might be available to formulate a complete proposal [to install appropriate filtration technology].... and all policy recommendations will be available for public comment and input through workshops and hearings prior to final actions being taken.

Plaintiffs’ Exh. 194.

As the rock mining activities encroach on the Wellfield, the risk of being designated UDI increases.... If the Well-field pulls in water from nearby surface waters containing [algae and diatoms or other indicators of contamination by surface waters] in sufficient concentrations, the Wellfield could be determined to be UDI even without the presence of any pathogens. The ultimate concern is that the Environmental Protection Agency has identified certain disease-causing pathogens which can survive in surface waters, but not ground waters. As surface water (rock pits) encroach on the Wellfield a habitat is created, which can harbor these pathogens.... It does not appear that compelling results [of the DERM contracted USGS study] will be available in time to modify the Wellfield protection zone prior to the April 2005 deadline [in the permits, before the Corps will lift the restriction in the cros-shatehed areas.] Even if the study were ready on time, it would likely show a significantly expanded Wellfield protection zone to the west of the Wellfield, and a resulting ordinance modification would take away anticipated mining rights owned by rock miners in that area.... If the County is not able to present compelling data that such mining will impose a risk to public health, the Corps may modify the permit to remove the restrictions. Removing the restrictions will allow the rock miners to proceed with their mining activities right up to the existing 60-day Wellfield protection buffer zone. Thus, the Wellfield would eventually be surrounded by surface water up to the existing buffer zone. Thus, the risk of being designated UDI increases, with no funding available to upgrade the water treatment plant.

Intervenors’ Exh. 17 (memo from William Brant to County Manager George Burgess, June 14, 2004) (emphasis omitted).

Because this represented a substantially larger zone of protection around the Well-field, the County determined that it could not afford to acquire the land within the zone necessary to protect the production wells.

147

The limestone miners

were not going to be willing sellers.... [T]hey pretty much indicated to us that all the equipment that they have, all the cement plants, and all those other extensive amount of investment [sic] that they have is based on rock reserves, and therefore, you know, a taking issue would — they would defend themselves.

Tr. 5208 (Espinosa). This Court’s prior Order addressed the mining industry’s advocacy with the Corps when seeking these permits and the industry’s pointed reminders to the Corps that a takings challenge would be filed if the permits were not issued.

Sierra Club,

423 F.Supp.2d at 1300—02.

148

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The Defendants urge this Court to “exercise great caution in reaching any conclusion about the adequacy of the County’s regulatory efforts” because “the County is not on trial here.” Docket No. 350, p. 13. While that is generally true, the Corps has taken every opportunity to place responsibility on the County for the Corps’ water quality assessments and cannot now claim that the County has no role in this matter. Furthermore, this new posture of deferral to the County represents a dramatic change in approach by the Corps from its previous decision to issue these permits in 2002 regardless of the County’s objections.

149

The Corps’ failure to adequately consider the results of tests performed by another federal agency, or to take any action related thereto, is another example of its failure to base its decisions on credible scientific evidence, 40 C.F.R. § 1502.22 (b), and accurate scientific studies, 40 C.F.R. 1500.1(b).

150

Moreover, the Corps’ emphasis on the County’s plans to upgrade its water treatment facilities masks the underlying fundamental fact that there is an increased risk of contamination, in the first instance, from these permitted mining activities— regardless of whether such contamination may be remediable.

1. Contamination issues as to Cryptos-poridium, giardia, and other pathogens

Several pathogens and other contaminants threaten the safety of a municipal water supply. Cryptosporidium and giar-dia are “microorganisms that during their life cycle form spores, cysts, or oocysts ... [and] can survive for long , periods in the environment and can be very resistant, to conventional treatment practices at drinking water facilities.” AR1175, p. 37 (citations omitted). The Wellfield protection zones and the mining setback lines are designed to keep these pathogens (and other contaminants) away from the production wells, based upon the likelihood of the. contaminants’ survival.

Giardia, Cryptosporidium, and relatives such as cyclospora and microsporidium can survive for months in some water environments. Cryptosporidium can survive greater than six months in some water environments and is also resistant to conventional chlorination. Additionally, there are other pathogens emerging as a concern to municipal drinking water supplies. One such pathogen is a bacteria, Mycobacterium avium, which is also chlorine resistant and, unlike giardia and Cryptosporidium which need a host

*1228

to reproduce, regrows in the environment.

Id.

“[Tjhere is no safe level of ingestion [by the public of Cryptosporidium and giar-dia]. There is no [maximum contaminant level (“MCL”) ] because at this point in time the [maximum contaminant level goal (“MCLG”), which is the target level for public water supplies] is zero.”

151

Tr. 269 (Dr. Huffman). The challenged permits require that the Wellfield’s water quality be monitored regularly for any indication of impacts from mining, but this monitoring appears to have started much later than intended and is poorly designed. In January 2003, almost one year after the permits had been issued, the required Wellfield monitoring report was' still in draft form.

152

The Corps’ failures with respect to requiring an adequate monitoring plan are consistent with this Court’s assessment that the Corps rushed through the approval of this mining and was determined to permit the mining regardless of the outcome of the analysis regarding environmental impacts.

Plaintiffs’ expert witness, Dr. Debra Huffman, testified that the Wellfield monitoring program, as finally adopted, was not a perfect system, and that past data indicates that “[sampling] methods are relatively imprecise.” Tr. 290 (Dr. Huffman).

153

Dr. Huffman, whose expertise on water-borne diseases (including the fate and transport of Cryptosporidium and giar-dia) was unchallenged by Defendants and Intervenors,

154

testified that the permit-

*1229

tees’ mining sites are only sampled quarterly and the samples that are taken are too small to be accurate, particularly if the recovery efficiency of the sampling is unknown. Tr. 291-94 (Dr. Huffman).

155

DERM’s current Director also testified that the mining companies are no longer sampling or at least are not reporting the results of the sampling from the surface water of their mining pits; nor is DERM sampling the surface water of these pits. Tr. 5218-19 (Espinosa). DERM still samples the groundwater and canals in the area. Tr. 433-34 (Dr. Markley). Tellingly, a senior member of DERM staff testified that she thought DERM was meeting its requirements, but “would like to see [DERM] do more to monitor water quality in the Northwest Wellfield.” Tr. 507 (Dr. Markley).

In light of the infrequent (or discontinued) sampling and its noted problems, Dr. Huffman testified that “the number of negative samples [for pathogens does not reduce] the ... risk of contamination or [the possibility that] ... these organisms [are present] in surface waters.” Tr. 290 (Dr. Huffman). “[T]he negative sampling results do not tell me definitively that there is no Cryptosporidium in the lakes.” Tr. 334 (Dr. Huffman).She continued:

[B]elow detection limit in this case is 12 oocysts per hundred liters. Therefore, any count less than 12 oocyst[s] per hundred liters, if that’s the volume that they sampled would be a nondetect. [It][d]oesn’t necessarily mean the organism wasn’t present.

156

Tr. 328 (Dr. Huffman). Nonetheless, a positive indication of giardia

was

found in a sample of water collected on December 28, 2005, from the surface water in the center of a mining pit located immediately adjacent to the area in which Continental (now owned by White Rock) was permitted to mine. The sample of water had 14.2 cysts

157

of giardia per hundred liters. Plaintiffs’ Exhs. 19, 20; Tr. 260-61 (Dr. Huffman).

According to Dr. Huffman, it is “very significant to ever get a positive result [for

*1230

these pathogens] because the recovery efficiencies of testing methods often miss low numbers of oocysts [i.e., the pathogen].” Tr. 273-74, 289-92, 353-54 (Dr. Huffman). Unfortunately, adding to the difficulty of discovering the presence of pathogens in the raw water supply, is the fact that the manifestation of diseases related to these pathogens in humans is substantially un-derreported; experts suggest that individuals of average health discount an upset stomach or occasional diarrhea which may be symptoms

158

of exposure to these pathogens.

159

Moreover, Cryptosporidium is a pathogen “that is not easily controlled with conventional disinfection practices ... setting the target concentration at the consumer tap is not appropriately conservative in estimation of incremental risk.” Plaintiffs’ Exh. 29, p. 2-2.

160

The risk of pathogen contamination underscores the importance of respecting accurate Wellfield protection zones and ensuring the County’s process of updating its Wellfield protection zones with current modeling results and data. Dr. Huffman testified that

[T]his is the first place that I have been to, having known all of what I have .... First time in my life that I looked at the tap water and drank my bottled water when I brushed my teeth this morning. I’m embarrassed to say that .... I’ve actually limited my consumption of the drinking water here in Miami-Dade County since I’ve been here, and I was very uncomfortable.... I travel throughout the country and I listen to people complain very often about the taste of their drinking water, the odor of their drinking water.... And aside from taste and odor issues, I think most utilities work very hard to provide a safe product .... And it struck me as being the first time — that I really took some pause in a hotel about drinking the tap water.

Tr. 350 — 51, 362-63 (Dr. Huffman).

161

Dr. Huffman explained that her concerns about drinking the local tap water were based on the information she reviewed in this case, which revealed that some of the monitoring wells showed high levels of algae and were very close to being considered GWUDI. Tr. 363. “[T]he fact that [the miners have] removed ... 60 feet of soil and aquifer material [in such close] proximity [to the production wells is also of concern].” Tr. 364.

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2. Benzene in the Wellfield

As an initial matter, the Court restates its decision to deny Defendants’ and Inter-venors’ requests to have evidence about the benzene contamination of the Aquifer excluded from consideration.

162

Defendants’ counsel suggested that the Court “lacked jurisdiction” over the matter because benzene contamination was not specifically identified in Plaintiffs’ Amended Complaint, Tr. 785, 795.

163

This case is in post-summary judgment proceedings to determine remedies for serious violations including the Corps’ failure to adequately study the risks of Aquifer contamination, as well as multiple instances where the Corps disregarded public notice and participation requirements of relevant statutes and violated numerous regulations. As the Court indicated at the evidentiary hearing, the Court has. determined that Plaintiffs’ Amended Complaint and this Court’s ruling granting summary judgment

164

are sufficiently broad to allow consideration of the evidence relating to benzene contamination.

165

Benzene was detected in the raw untreated water delivered to the Hialeah-Preston water treatment plant on January 4, 2005; benzene levels were initially at .25 parts per billion (“ppb”)

166

but increased

*1232

to 14 ppb during February and April. During this incident of contamination, the levels in the production wells rose as high as 14 ppb in PW-1, and 7.1 ppb in PW-2. Docket No. 366 (Executive Summary of Northwest Wellfield Benzene Investigation, prepared by DERM, February 2007 (“Executive Summary of Investigation”), p. 3). During the same time period, the finished water, after treatment at the plant, was Below Detectable Limits (“BDL”), i.e., not measurable, for benzene. As this was the highest level of benzene ever detected at the plant,

167

the local agencies clearly considered it important

168

to conduct a search despite their assertions that the water treatment plants could handle the contamination.

169

County Management also monitored the investigation:

The results, so far, indicate that benzene extends to at least a distance of 1200 ft from [PW-1]. The highest concentration found so far is approximately 20 ppb, at a depth of about 60 ft near [PW-1] .... The source has not been identified, but we continue to search for potential sources.

Plaintiffs’ Exh. 100: Memo from George Burgess to Mayor and Board of County Commissioners, March 17, 2005.

Monitoring wells were installed in the Wellfield to delineate the area of contamination. A cluster of wells was installed at each monitoring well location. Each location included a shallow well, an intermediate depth well, and a deeper well. DERM’s investigation concluded that for this first contamination incident (2005), “the highest contaminant concentrations occurred at depth: the shallow wells exhibited the lowest and the 60-foot wells the highest concentrations.” Executive Summary of Investigation by DERM, p. 4. The agency determined that the contamination plume (the path of the contaminant) was delineated as follows: “a narrow, elongated plume extending from the southwest ([monitoring well] NW-126) to the northeast ([monitoring well] NW-119) and a separate localized area of impact located approximately 3000 feet to the south of the PW-1; [at] assessment well NW-109.” Executive Summary of Investigation, p. 4.

170

It is important to note that 3000 feet is outside the current mining setback in

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the challenged permits, i.e., mining is proceeding or is entitled to proceed at that distance from the production wells according to the Corps’ permits. The benzene incident in early 2005 revealed the Well-field’s, and the municipal water supply’s, vulnerability to contamination:

Well, it’s all one aquifer.... [I]f you detect benzene at 60[ppb] in a monitoring well, and then you also have benzene in a production well, the logical conclusion is that the groundwater is being pulled into the production well, bringing the benzene with it.... The cones of influence of these [production] wells reaches [sic] out miles.

Tr. 1475-76 (Bránt).

Benzene was detected in the production wells again in June and July 2006, Tr. 2364 (Ana Caveda). Benzene was detected at a maximum of 9 ppb in PW-1, 5.8 in PW-2 (it was .99 ppb of benzene when benzene was first observed in June 2006), and 1.5 in PW-3 (rising from an original detection of .24 ppb in June 2006). Executive Summary of Investigation, p. 3. The only sampling for benzene by the County at that time was in the cluster of wells near Monitoring Well 109 (“NW-109”) and the cluster near NW-126. Tr. 2364-65 (Caveda). Plaintiffs’ Exh. 135. For this second major incident of contamination, DERM reached similar conclusions — the greatest impact of the concentration was seen in the deeper wells, i.e., at 60 feet. The data for this episode showed a wider plume extending from the west and southwest (near NW-124 and NW-115) and narrowing in the vicinity of PW-1, then extending to the north (NW-105) and northeast (NW-115) of PW-1. The highest concentrations (17.1 ppb at the deep level monitoring, and 12.7 at intermediate depth) were at NW-124 — a location which had not previously shown .benzene. A set of monitoring wells was installed near a mining lake operated by White Rock, approximately 5400 feet west of PW-1, and low concentrations of benzene were found.

A total of 86 monitoring wells were installed, ranging from shallow to deep depths, during .WASD’s investigation of the benzene contamination, and samples were obtained detecting as much as 60.5 ppb of benzene. Executive Summary of Investigation, p. 3. Groundwater levels of benzene in NW109 (3000 ft south of PW-1), were detected at 14.9 to 50.9 ppb. The record is unclear

171

as to how much sampling for benzene presently is being conducted, other than at the production wells,

172

e.g., what other locations are being sampled, and by whom.

173

DERM’s investigation of the benzene contamination revealed that . certain sources (other than blasting related to mining) were not the cause of the contamination, e.g., a submerged vehicle in a rock mining pit, contaminated soils from a mining dragline

174

assembly area.

175

Nor does DERM believe that benzene is the

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result of a gasoline spill, Tr. 4759, nor of any “continuous source” of discharge, Tr. 4761. While Wilbur Mayorga, of DERM, claims that the County has “not been able to find ... specific information that could link [the benzene contamination] to the blasting,” Tr. 4752, the Court finds this testimony to be at odds with the weight of the evidence. Mayorga himself admitted that “there were some samples targeted to prior to and after the blasting ...: We found [NW]109 with elevated levels, and that’s when we started investigating [NW]109 .... [the investigation revealed that levels went up] from 47.5 to 60.5” after a blasting event. Tr. 4750-51.

The County’s initial investigation of potential sources of the benzene included an evaluation of the mining activities. William Pitt, a senior professional staff member at WASD, testified that his prior experience working as a subcontractor for the County on a blasting investigation in the Wellfield provided him with background information regarding the blasting associated with mining and the potential for such blasting to be the source of the benzene. He described the blasting process used by the mining companies, stating that core holes are drilled to depths of up to 100 feet, “almost to the bottom of the aquifer,” and then filled with as much as 300 pounds of a blasting agent, ammonium nitrate fuel oil (“ANFO”), which contains fuel, e.g., diesel, of which benzene is a component. Tr. 1268-70. Ana Caveda,

176

the WASD staff member who conducted the field investigation of the benzene contamination, testified that after the blasting holes

177

are drilled, a cardboard tube is inserted with the explosives and placed at the deepest point of the hole, e.g., 60 feet, continuing

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until approximately 10 feet below the surface. The top 10 feet -then are filled with “blasting caps” and the holes are connected by wires so that they detonate together. Tr. 2320 — 22. Sometimes more than 100 of these blasting holes would be connected in a row. Tr. 1268 — 70 (Pitt).

178

Ms. Caveda was in the field, collecting samples in late April 2005, when she noticed that blasting was occurring nearby.

I have notes from being there and pictures and personally witnessed a driller actively drilling rock piles from active mining efforts after the blasting takes place all along the edge — western edge of the south White Rock lake .... During the month of ... April ... I was present on-site at a sampling event taken or performed April 28th, and I witnessed, just from going there to the site all the time, that western edge was being mined actively from day to day. The progression along the lake’s edge from the southern corner to the northern corner along the west wall of the lake was — it was progressing. It had reached the northern corner closest to monitoring well 109 .... [I. knew blasting was going on] [because I had seen the orange caps in place on some days, then the following days visited those areas,] the ground didn’t exist and the area was actually being mined and the piles of rock were getting higher. We had an actual like crane or deadline, whatever they call it, piece of heavy equipment that digs the soil out, the loose rock out from the water, and piles it up at the lake’s edge.

Tr. 2352-54.

See also

Plaintiffs Exh. 185.

Ana Caveda collected a sample from the shallow well at NW-109 immediately following a known nearby blasting event to determine if it would detect benzene and it did. Ms. Caveda testified that the WASD team responsible for the investigation;

witnessed blasting caps in the northwest corner of the White Rock south lake on April 28th [2005] on the occasion of our sampling out there, and the results appeared or revealed benzene at 42 parts per billion for the [mining] consultant’s lab, 47[ppb] for the [WASD] lab and 23.5[ppb] per billion for the DERM lab in the 40-foot well. And the shallow was below detection limit, and the deep had 28[ppb] by the consultant’s lab, 34[ppb] by the [WASD] lab and 17[ppb] per billion by the DERM lab. And then resampling of the same well on May 3rd revealed benzene at higher levels. 61.6[ppb] in the [intermediate depth well at NW-109], and 50.9[ppb] in the [deep well at NW-109] .... And the photos show that those [blasting] caps that were in place at the previous sampling . event were already blasted by the second sampling event .... [H]e drew the conclusion that there was a spike due to the blasting effect. I mean, it was just a possibility that needed to be evaluated.

Tr. 2358-59.

On one occasion, Ms. Caveda saw a “cloud of yellow fumes of some sort” and

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discussed it with a representative of per-mittee/Intervenor Florida Rock who told her that it “was a dud, an explosion or a detonation that didn’t work or didn’t happen properly, and that is what comes off of an explosion that doesn’t work, I guess, in the ground.” Tr. 2323-24. Reportedly, duds or misfires “happen[] all the time” Tr. 2324.

It appears that there were several items of information related to the blasting which weren’t investigated by DERM. For example, DERM didn’t obtain information about “partial detonations and their frequency and magnitude in and around the Northwest Wellfield,” Tr. 4757,

179

DERM never tested the blasting material itself, Tr. 4762, DERM also “didn’t consult with any blasting ... experts” and “did not conduct any lab or field experiments to determine whether the blasting and what it did to the blasting agents might be the source of the benzene,” Tr. 4759.

In contrast, WASD professional engineering staff, who conducted the field investigation and who evaluated its results, found the blasting to be the most likely source of the benzene. Blasting related to mining “was the most likely of the sources that we identified, yes. It was a source that was the only thing in the area that had the same depth where the contamination was found, the mining activity introduces materials at the same depth as the benzene that was found, and also the same depth as the flow zone to our production wells.” Tr. 2366 (Ana Caveda)

180

. While the specific source of the benzene remains unidentified, the Court finds the results indicating benzene’s persistent presence at depths of 60 feet to be significant.

Benzene is a low density chemical, significantly lighter than water, it is not likely that the concentration at the 60-foot depth could have resulted from an above-ground surface spill that leaked downward into the Aquifer, nor is it likely that it could have resulted from a buried tank that leaked or from any other similar disposal at the top of the aquifer.... [It appears likely] ... that benzene must have entered the aquifer at depth and then moved with the water in the preferential flow layers of the aquifer, maintaining a higher concentration in those flow zones as the benzene plume moves through the aquifer. Day-to-day fluctuations in benzene concentration within the flow zones could be the result of plume pulsations caused by plume direction changes when the flow lines are affected by variation in Well-field pumpage rates and by the wells actually in operation.

Plaintiffs’ Exh. 81 (“Evaluation of the Occurrence of Benzene at the NW Wellfield,” undated

181

memo from William Pitt to William Brant). Mr. Pitt, whom the Court found very credible,

182

explained to this

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Court that the benzene was

found in high concentrations, ten parts per billion or higher, in the 60-foot zones of the aquifer, and in much lesser concentrations, one parts per billion or less, in the shallow zones. Furthermore the data show that the high concentrations appear to be to the south and southeast of the southernmost well, well number 1.

Tr. 1223-24 (Pitt).

See also

Plaintiffs’ Exh. 81. The County’s CAP, prepared by WASD, also notes that:

As groundwater flow in the vicinity of the Wellfield is towards the production wells, not away from the production wells, the source of the high concentrations of benzene must originate from south of the Wellfield, and from production well 1.

CAP, p. 2.

In addition to the evidence as to the location from which the benzene originated, the Court is particularly impressed with the testimony of Dr. Hennet regarding the nature of blasting and the release of benzene — regardless of whether benzene is present in the blasting emulsion. His relevant experience, and his careful testimony,

183

indicated that his opinion was thoroughly developed. The Court found that Dr. Hennet’s testimony was much more relevant and credible than that of either Dr. Feenstra,

184

or Dr. Machacek, who was unaware even as to the concern tration levels of benzene detected in the Wellfield. “I thought parts per million, but I don’t know.” Tr. 7014.

185

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The evidence is compelling that when a blasting compound contains fuel oil, or any other component which includes benzene, that benzene may be released into the groundwater. While Intervenors’ expert, Dr. Feenstra, attempted to dispute this, he was unconvincing. Dr. Feenstra is not an expert in combustion byproducts, as acknowledged by counsel for Intervenors. Tr. 6217. Dr. Feenstra tried to establish that the benzene was related to a distant gasoline spill, but each aspect of his opinion testimony was rebutted convincingly by Plaintiffs’ expert Dr. Hennet. Tr. 6577, 6582 (Dr. Hennet).

Dr. Hennet relied on the “state of the art” in the combustion sciences, the most “modern, very recent research in combustion chemistry,” Tr. 6531, in forming his expert opinion. He relied on combustion chemistry, and studies of the “chemical pathways that explain what happens during combustion of the products that are present in the blasting mixtures.” Tr. 6532 (Hennet). Dr. Hennet testified that the data from the Wellfield, while limited, did reveal that there was an “excellent correlation,” Tr. 6448, between the levels of benzene and the levels of corresponding chemicals styrene and ammonia, for example, found in the samples in the deep and intermediate depth wells at NW-109, which supports his opinion that it is inevitable that benzene will form during the combustion of ANFO.

186

That correlation indicated a similar source for both the benzene and the ammonia in those levels at that location. Tr. 6498.

187

Dr. Hennet testified that even if fuel oil is not being used, the formation of benzene is still probable. “So you do not need to start with benzene or anything else to go and yield benzene. You start with hydrocarbons, you break them down through combustion, you form those type of very reactive compounds that are called free radicals that recombine and start to form those aromatic compounds.” Tr. 6446-47. The starting product is not that important, as long as it includes hydrocarbon compounds that will break down to form those free radicals. Tr. 6448. Even if fuel, or diesel, oil is not used in the blasting agent, benzene still may form as a result of the combustion of hydrocarbons.

[WJhen you combust or you heat up vegetable oil, you’re going to go through the same process, and you’re going to produce those free radicals and then you are going to produce some benzene.... So even if you cook a hamburger, you are going to produce free radicals, and some of them will combine to form benzene, and that has been documented, measured, and it is ... in the literature.

Tr. 6448. “You start with hydrocarbon mixtures, you bring enough heat to them to break those compounds into free radicals, and those will recombine to form those type of compounds.” Tr. 6448. “The combustion of mineral oil will yield to the formation of benzene under appropriate conditions, ... [conditions which] are [definitely possible] in the Lake Belt.” Tr. 6579 (Hennet).

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Intervenors attempted to establish that the temperature of the explosions in the Wellfield is too high to have allowed for the release of benzene,

188

but Dr. Hennet credibly testified that the cool temperature of the groundwater surrounding the four-to-six inch blasting holes would maintain the temperature at a range which is conducive to the formation of benzene. It is “very likely, and ... probably unescapable [sic]” that the use of ammonium nitrate blasting agent that contains a hydrocarbon mixture “will form some benzene.” Tr. 6581. The blasting process itself may be responsible for the benzene if the hydrocarbon burning during the blasting is the source of the benzene, it may not matter that the source of the hydrocarbon is from diesel fuel or mineral oil. Tr. 6397, 6448, 6494, 6548, 6579 (Dr. Hennet). Benzene spikes occurred at same time as spikes of styrene (hydrocarbon similar to benzene and also produced by the combustion of hydrocarbon mixtures), Tr. 6487-92 (Dr. Hennet), as well as ammonia (the primary ingredient of the blasting agents). Tr. 6341 (Dr. Hennet), Plaintiffs’ Exh. 227 & 239.

“[W]hat I am able to establish with confidence as an expert in my field is that when ANFO blasting agent is used, products such as benzene, toluene, styrene, ethyl benzene, xylenes are going to be produced.” Tr. 6548 (Dr. Hennet). Dr. Hen-net was careful not to testify as to exact amounts, but rather relied only on estimates, noting that it is impossible to know exact amounts based on the insufficient data in this case regarding the amount of explosives used, the depth at which they are placed in the Aquifer, the temperature of the blast, etc.

We do not háve sufficient data from the field to give quantitative answer of how much is being produced for styrene, benzene, toluene, [etc.]. What we know is that it is produced.... We know it by the science ... and we see exactly what we expect [we] would find if we were contributing those compounds from the use of [ammonium nitrate] blasting agents. That’s for certain.

Tr. 6549.

Intervenors argue that the lack of prior incidents of benzene contamination despite decades of mining in the area prove that the mining cannot be the source of the benzene. The Court disagrees.

Whereas before, that Wellfield had never been operated, consistently every well. So at that point we had the most — I guess had reached a certain level of pumpage that may have brought the things in.... by aerial photographs ... it indicates that the lakes were further away in the past. Now they’ve reached the closest locations.

Tr. 2431 (Ana Caveda).

189

Moreover, the benzene data sampling in the area only started in early 2000, and was so limited that it may not have detected benzene simply because the sampling was performed at a great distance from any blasting occurring at the time.

[After 2000,] it appeared that samples were collected. maybe once a year, maybe a little bit more often than once a year, until 2003, when it was collected three times a year. Then it continued— the frequency of sampling started to increase 2004, 2005[sic], and then ben

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zene was starting to be detected and you have a lot of data. But early on, before 2000, you do not have a lot of data, even though you may have 40 years of blasting. In the early years of this, when you have very few samples, low levels of benzene were detected, not very high. [T]his data ... [is] not sufficient to understand what happened for the last 40 years.... I think the data is pretty sparse for 40 years of blasting, and I don’t think anybody can say whether or not it happened before.

Tr. 6552-53 (Hennet).

At some time after a meeting with the permittees’ representative, Kerri Barsh, in June 2005, the mining companies reportedly began to use mineral oil as a substitute for fuel oil in the emulsion mixture. Tr. 4763-64 (Mayorga).

190

Tarmac substituted a “food grade mineral oil for the fuel that had the diesel — the benzene component,” Tr. 4969, but had been using diesel fuel until February 2006, Tr. 5026, i.e., had been using a product with benzene as a component. Intervening Defendants’ Exh. 112. Intervenors’ counsel has asserted that his clients have voluntarily stopped using the product “which theoretically possibly could be” the cause. Tr. 2448. On July 25, 2006, Intervenors’ Counsel stated that reportedly one company stopped using benzene/fuel oil in 2002, others stopped in 2005, and “nobody’s using it anymore.” Tr. 2450. The Court notes that the mining companies obviously have a record of compliance with regulations, etc., but the Court finds nothing in the record that suggests that the Corps has taken enough interest in this issue to even verify that the companies are not using a benzene-containing oil. The Corps apparently has not asked for assurances, has imposed no conditions, has conducted no independent analysis — or at least no such efforts have been brought to the Court’s attention.

The Corps was aware of the benzene contamination by at least March 2005, see Plaintiffs’ Exh. 150. Despite this knowledge, they filed a preview of the “Three Year” report in September 2005, as well as the “Three Year” review report in April 2006 without a single mention of the incident.

191

Moreover, Studt testified that in late 2005 the Corps was “about to propose lifting [the prohibition on the double crosshatched areas] because we had not been completely made aware of the County’s position, and we were made aware by communicating with the County and receiving this [January 17, 2006] memorandum [Plaintiffs’ Exh. 149].” Tr. 2759. Studt testified that the Corps was not “imminently” prepared to remove the restrictions but the fact that the Corps was even considering removing them at all after having learned from the County in early 2005 that the benzene posed an “immediate public health hazard to ... [the] County’s public water supply,” Plaintiffs’ Exh. 150, is troubling.

192

Studt testified that the Corps normally “[defers] to the county experts who are delivering the water .... If the County came to the Corps ... and expressed a concern, then we would certainly carefully evaluate that ... and talk to experts in that area.” Tr. 2583.

193

The

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Corps has as of this date

194

decided to retain the restrictions on mining in the double cross-hatched area until the SEIS is completed,

195

but it is unclear what the Corps will decide at that time.

The Corps’ claim that the- benzene contamination was not seen as a problem by the County,

196

is interesting when comPared to the County’s prediction, more than fifteen years ag°’ of almost this exact ■occurrence. On July 29, 1992, John W. Renfrew (then Director of DERM, now Director of WASD),

197

identified the follow

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ing as an issue in the proposed development of the mining plan: “Does the cumulative use of explosives over the lifespan of the project result in some sort of contamination?” AR44.

198

In any event, regardless of the local government’s failure to determine precisely

199

the source of the benzene, this Court concludes, based upon the evidence presented to the Court, that the mining activities are a likely source of the benzene.

200

3. Treating the water, or not

— costs

and delays in upgrades to the water treatment plants, and the question of private wells

The federal and state government have established drinking water standards

*1243

which vary depending upon the source water classification. Some regulations apply to surface water and GWUDI but not to groundwater. Various improvements at the water treatment plants will be required if the Wellfield is classified as GWUDI. The County has received estimates that the total present worth cost of constructing, operating, and maintaining the required plant improvements would be between $97,900,000 to $188,000,000 based upon a 20 year time period.

201

(These figures include an estimated $2.4 to $4.9 million annual cost to operate and maintain the upgraded plants.) Intervenors’ Exh. 90, Estimated Present Worth Costs for the GWUDI related improvements, Table 8, p. 14, Miami-Dade Water & Sewer Department, John E. Preston and Hialeah WPS, Update of GWUDI Impact Report, July 2006.

202

Presently “the [water treatment plants] fall short of the regulations for GWUDI facilities with regards to filtered water effluent turbidity, filter backwash water recycle and disinfection.”

Id.

p. 5 . The water treatment plants will have at most eighteen months in which to comply with new standards following reclassification of the source water as GWUDI,

id,

but it is estimated that the upgrades to the water treatment plants will require three to five years to be completed. Tr. 4291 (Dr. Yo-der); Tr. 1576 (Brant).

203

In addition, efforts to upgrade the plants may be complicated by other factors.

Both [water treatment plants] have been upgraded and expanded several times since their original construction. The expansions have utilized practically all available land at both sites. Additionally, the plants are bordered on three sides by residential streets, leaving no potential land to be readily acquired for expansion. Any treatment upgrades required due to reclassification as GWUDI will need to be carefully sited and the cost estimates will need to reflect the difficult construction requirements due to the congested sites.

Intervenors’ Exh. 90, p. 11. More importantly, the processing of benzene in the raw water may raise issues of air pollution.

The treatment at the water treatment facilities involves a technique known as air stripping; that method of treatment can effectively process at most 280 ppb of benzene from source water in order to result in a maximum of .1 ppb output (1/10 of max level of 1 ppb (FAC Chapter 62-550)). CAP, p. 3.

204

The Hialeah/Preston water

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treatment facilities are classified as a “Major Source of Air Pollution” by Florida code. FAC Chapter 62-210 (limits on air stripping activities). “While there is no specific limitation in the permit for Benzene, there is a limit for total YOCs emitted of 59 tons in any consecutive 12-month period.... Benzene is classified under Chapter 62-210, F.A.C. as a hazardous air pollutant (HAP) and must be evaluated as such.” CAP, pp. 6-7.

The results show that a maximum of 52 ppb of Benzene in the raw water can be effectively treated to an effluent concentration of 25% of the MCL (Department of Health criteria) with an Air to Water Ratio of 30:1. If the Air to Water Ration [sic] was increased to 60:1 then a maximum concentration of 100 ppb Benzene can be effectively treated to an effluent concentration of less than 25% of the MCL.

CAP, p. 5 (essentially, this indicates that the processing of benzene-contaminated raw water from the Wellfield may raise issues of air pollution at the water treatment facilities).

The former Director of WASD testified that upgrades to the treatment plant would not have been necessary but for the encroachment of the rock pits. Tr. 1575 (Brant). “[I]f one of the

existing

lakes causes the County to be designated [GWUDI], we would not have the money to immediately respond. Of course, this is true today and has been true for a number of years.” Intervenors’ Exh. 17 (Brant memo to Burgess,' June 14, 2004).

205

In addition, the record suggests that the costs of the million-dollar benzene contamination investigation and other Wellfield monitoring activities are being paid by the general public — and not by the mining corporations.

According to Intervenors, a new amendment to Fla. Stat. § 373.41492 will increase mitigation fees associated with limestone mining and also create a new fee of $.15 per ton to pay for upgrades to the water treatment plant that treats the water coming from the Wellfield. Docket No. 153, filed June 8, 2006 (Notice of Legislative Development by APAC-FLori-da).

206

Intervenors estimate that the new fee will generate $7.5 million a year.

207

Even if the mining were to continue for the five years remaining in these permits, the total collected pursuant to this new fee would be only $37.5 million. This figure is far below the County’s prior reasonable estimates as to the costs of the upgrades. Therefore, Intervenors’ arguments that the fee will “enable the issuance of bonds to pay for the water treatment plant upgrades” are somewhat misleading. Docket No. 153.

208

Also, it is unclear whether any

*1245

fees will be owed once the mining has stopped. The quarry pits already exist, and continue to grow as mining continues — it may be that the reclassification of the water source as GWUDI is inevitable. The Corps should have been more vigilant at evaluating these risks prior to issuing these permits. The Corps’ failure to include sufficiently cautious restrictions on mining in the Wellfield and near the pumping wells may already have allowed an irreversible harm to occur: reclassification of the Wellfield and the Aquifer.

209

The former Director of WASD, William Brant,

210

testified that:

[t]he approach of providing drinking water in Dade County in my 35 years of experience has always been to protect the groundwater quality, not have to rely on a manmade water treatment plant, where, you know, things can go wrong, and frankly which isn’t in most cases designed to handle the variety of chemicals that exist.

Tr. 1449 (William Brant).

The Court is very concerned about the potential contamination of private wells operating near ongoing mining operations. The evidence on this issue was unclear. The parties focused on the existence of private wells in the Wellfield area,

211

but did not comment on the existence of private wells in the areas near those mining operations which are not located in the Wellfield. The former Director of WASD testified that there are:

thousands and thousands of private water supply wells throughout [Miami-Dade County] that people rely on, some for sprinkling but for some drinking. Quite a bit for drinking. Water is used. It’s very accessible. It’s very easily obtained. You can put a well in 20 feet and get water.

Tr. 1449 (Brant). This testimony informs the Court that there may be private wells in the rural residential development within the Lake Belt area and the surrounding housing developments to the north, south, and east of these mining operations— clearly visible in photographs in the record. In short, the evidence is missing as to private well owners in surrounding areas and the effect this mining may have on the Aquifer from which they get their water; thus, it is unclear whether landowners in surrounding areas are at an increased risk of potential exposure to benzene, Cryptosporidium, giardia or other contaminants as a result of the mining which has occurred pursuant to these improperly issued permits.

4. Establishing a temporary protection area to protect the production wells from further contamination, to be adopted immediately

In light of the overwhelming evidence and nearly unanimous opinion

212

that the

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current Wellfield protections provide an inadequate buffer,

213

and the Corps’ failure to acknowledge that fact, the Court reluctantly has determined that it must impose a specific prohibition on mining near the Wellfields’ production wells. The Court is not a hydrologist, and is extremely reluctant to make a decision as to which lines would be adequate to protect mining which the Corps continues to authorize; however, at an absolute minimum, the Court has determined that the line represented in Plaintiffs’ Exh. 3b, i.e., the 60-day

214

line based upon the current permitted maximum pumping rate of 155 MGD

215

and the lower porosity-thickness product (Nb of 1.33 ft), as derived by Dr. Papadopulos from the 2003 and 1998 tracer tests, Plaintiffs’ Exh. 3b, must be the mining setback distance for the duration of this brief interim period until the Corps completes its SEIS. The Court has selected this proposed delineation of risk based upon the fact that it relies on the only tests which were located to the west of the wellheads — i.e., taking into account the east-flowing groundwater and relevant gradients.

216

Thus, the partial stay of this Order vacating the permits does not apply to mining within the protection area indicated in Plaintiffs Exh. 3b, included as an Appendix to this Order. In other words, all devegetating, demucking, scraping, blasting, and harvesting of limestone from the Aquifer must stop in those areas immediately

(no later than 5:00 p.m. on Tuesday, July 17, 2007).

The Corps shall ensure compliance with the Court’s Order. Any

*1247

rock which already has been removed, i.e., is above the surface, may be hauled away and processing in plants or any other above-ground activity may continue. The Court’s review indicates that the following mining operations are affected by this prohibition, but the Corps shall determine precisely which mining operations are affected:

Tarmac

— there shall be no devegetat-ing, demucking, scraping, blasting or harvesting of limestone from the Aquifer as to all mining in Sections 10 (nothing done yet) and 3 of T53S, R39E; as to all but the northern half of the mining in Section 34 of T52S, R39E; and as to all but the northern and eastern areas of the mining Section 1 of T53S, R39E. The permittee may continue to process rock which already has been removed or stockpiled and may continue to conduct other above-ground operations not prohibited by this Order.

Florida Rock

— there shall be no devege-tating, demucking, scraping, blasting or harvesting of limestone from the Aquifer as to all mining in Sections 9, 15, 21, and 22 of T53S, R39E. The permittee may continue to process rock which already has been removed or stockpiled and may continue to conduct other above-ground operations not prohibited by this Order.

APACfWhite Rock

217

— there shall be no devegetating, demucking, scraping, blasting or harvesting of limestone from the Aquifer as to all mining in Sections 16 and 23 of T53S, R39E. The permittee may continue to process rock which already has been removed or stockpiled and may continue to conduct other above-ground operations not prohibited by this Order.

The Corps shall confirm to the Court no later than 5:00 p.m. on Monday, July 16, 2007, whether the mining operations identified above are the ones which would be within the area identified in Plaintiffs’ Exh. 3b as the 60-day travel time protection zone. To be clear, the Court is ordering this remedy, and setting aside these permits until the SEIS is completed because the Corps has failed to fully consider the impacts on the Wellfield caused by this mining, in violation of,

inter alia,

33 C.F.R. § 320.4 , 40 C.F.R. § § 230.11, 230.10, and 40 C.F.R. § 1502 .

In making the ruling announced today, which requires that White Rock, Florida Rock and Tarmac cease mining in certain areas of their operations, the Court has considered primarily the need to protect the Wellfield and the Aquifer. The Court notes, however, that for at least two of the three corporations which will experience these limits on mining, the record suggests that they will be able to adapt. For example, the Court has considered that White Rock has alternative locations in which to mine, including its main quarry at the north of the Lake Belt area, and that Florida Rock apparently has the ability within its new corporate identity, i.e., as Vulcan Materials, to absorb the loss. The Chairman of Vulcan Materials, the new owner of Florida Rock, has stated that

Florida Rock [is] extremely well positioned, regardless of the outcome of the Lake Belt litigation.... Florida Rock can [completely] recover from the loss of all of the 4 million tons that it could possibly lose as a result of an adverse ruling in the Lake Belt litigation.... [T]he combined Vulcan/Florida Rock company will be well positioned on any of those possible outcomes [of the Lake Belt litigation].

See

transcript of discussion between Don James, Vulcan Materials Company, Chair

*1248

man and CEO, and John Baker, Florida Rock Industries President and CEO, SEC minutes of February 29, 2007, available at

www. secinfo. com/dsvr4..u2dh.9. htm# lstPage.

218

The President and CEO of Florida Rock, John Baker, noted that the company had been approached by Vulcan Materials in December 2006, and that the deal had been in negotiations since then. Mr. Baker reported that:

by double shifting Fort Myers, we feel like we could make a lot of money on the second 4 million tons out of Fort Myers where we have really, really long-term reserves and could afford to do that. When you bring Vulcan into the picture, there are so many positive ways this could turn out, it’s really an appealing situation.... [T]he combination of the two companies has taken the Lake Belt, ironically, from being a threat to being an incredible opportunity perhaps.

Vulcan Materials’ Chairman and CEO continued by stating that:

given our ability to produce aggregates in the State of Florida, and our ability to bring aggregates into the State from offshore [from Mexico by ship] and from Georgia and Alabama [by rail], we are very well positioned ... we already have existing facilities to supply much larger quantities of material to the State of Florida with very little additional capital cost.

As to Tarmac, the Court notes that most of the areas allowed to be mined under these permits already have been cleared. Tarmac is “running up against the end” of its ten year permit and already has cleared/devegetated everything under the current permits “until [they] get special condition seven [restricting the double cross-hatched area from mining] lifted.” Tr. 5064 (Albert Townsend). The BO, published in August 2006, indicated that Tarmac had 653 acres to be cleared. It appears that of that amount, approximately 340 acres are located in Section 10, T53S, R39E, and subject to the Corps’ double cross-hatching restrictions at this time in any event.

B. The permits must be set aside because the Defendants’ conduct to date with respect to mitigation requirements has been arbitrary, capricious, or otherwise not in accordance with law

— and

has resulted in the unnecessary destruction of hundreds of acres of wetlands and other adverse environmental effects

The Court’s March 2006 order analyzed the mitigation insufficiencies as well as the groundwater seepage issues. No evidence or testimony presented to this Court has altered the Court’s conclusions that these are important issues which should have been more completely analyzed before these permits were issued. Moreover, the state of the evidence today clearly reveals that the mitigation strategy has serious flaws including the inadequacy of the cost estimates with respect to the acquisition of acres of wetlands in the Pennsuco, the insufficiency of the available land in the Pennsuco, and the failure to have a developed plan for the construction of littoral shelves related to mining which occurred years ago — all as predicted. In contrast, the issues as to groundwater seepage remain somewhat undefined, as discussed below, and suggest a need for much further study prior to determining appropriate mitigation for anticipated impacts.

As discussed in the Court’s March 2006 Order, the mitigation requirements which were included in the permits were widely criticized as insufficient.

Sierra Club v.

*1249

Flowers,

423 F.Supp.2d 1273, 1322-27 .

219

Senior Corps staff predicted that there would be a “a deficit [of mitigation in the] early years” of the permits. SAR1230.

220

The Corps also has been criticized nationally for its failure to ensure compliance with the mitigation required in all CWA § 404 permits pursuant to 33 C.F.R. § 325.4 (a)(3). Plaintiffs’ Exh. 174, Government Accountability Office Report to the House Committee on Transportation and Infrastructure, “Wetlands Protection: Corps of Engineers Does Not Have an Effective Oversight Approach to Ensure that Compensatory Mitigation is Occurring,” September 2005 (“GAO Report”).

The Corps’ priority has been and continues to be processing permit applications .... Until the Corps takes its oversight responsibilities more seriously, it will not know if thousands of acres of compensatory mitigation have been performed and will be unable to ensure that the section 404 program is contributing to the national goal of no net loss of wetlands.

Id.,

pp. 26-27 .

221

The Corps’ failure to include “reasonably enforceable” mitigation requirements for the impacts of mining authorized in these permits violates the Corps’ governing regulations, 33 C.F.R. § 325.4 (a), and the Corps’ failure to date to include mandatory provisions regarding the acquisition of the Pennsuco or the transfer of mined property to the public compel this Court to order that the permits must be set aside.

222

As predicted, the costs of acquiring land in the Pennsuco, the targeted area for mitigation, have increased far beyond the costs estimated in the permits’ mitigation scheme. The current market value is five times higher than the $3,000 per acre acquisition costs assumed by the Corps at the time it approved the permits. Tr. 3292 (Janet Llewellyn). The Corps’ “Three Year” review report notes that it is “increasingly more difficult to acquire adequate mitigation land in the Pennsuco within the limits of the fees collected.” Docket No. 103.

223

Intervenors have start

*1250

ed paying higher mitigation fees for each ton of the limestone mined. It is unclear whether the newly increased mitigation fee will be sufficient.

See

discussion,

supra,

page 1196. If the Corps had conducted further study of the mitigation needs at the time it decided to issue these permits it seems that it would be more likely that the originally intended mitigation of the Pennsuco would occur. The present evidence suggests that it might not, due to the high prices being demanded by unwilling sellers who own property in the Penn-suco. Indeed property elsewhere in the Lake Belt is being sold at significantly higher prices; White Rock recently paid $160,000 per acre for property in the Lake Belt that is not presently within the permitted areas. Tr. 5560 (Hurley).

In addition, there may not be enough property available in the Pennsuco to accomplish all of the required mitigation.

Sierra Club,

423 F.Supp.2d at 1328 .

224

The permits require that “[cjompensatory mitigation for the ecological impacts to the wetlands associated with land clearing activities authorized by this permit will be provided by acquiring, restoring and managing lands within the Pennsuco.”

See, e.g.,

p. 4 of AR1055 (Permit issued to Sunshine Rock, Inc., Permit No. 200002285).

225

An internal email between Corps staff members supports this proposition:

You can go outside of the [Pennsuco] basin without modifying the Corps permits. The Lake Belt Plan ‘Phase II Plan’ report on page 18 lists the ‘priority ranking of locations of off-site mitigation,’ Pennsuco is first. However,

the Corps decision document discussed the benefits of acquiring the Pennsuco lands, so if you don’t buy the Pennsuco, you will run into the problem that you have implemented something different from the ecological benefits that were described in the decision document. The decision envisioned the Pennsuco occurring PLUS

...

in addition ... ‘other mitigation’. So PLEASE don’t take the pressure off the Pennsuco stuff

...

or if you do, you will have to do an

*1251

elaborate re-analysis of the mitigation plan as an amendment to the ROD!

Now the permit instrument provides you can adjust the mitigation plan at the first review period.

SAR1277 (June 5, 2003, email message between Corps staff) (emphasis added).

226

Despite this clearly stated preference for lands in the Pennsuco, the Corps has readily approved permit modifications with respect to mitigation requirements, i.e. requirements which should be enforced rather than amended.

227

The Defendants have advised the Court that “[I]f the Corps determines that the mitigation has become inadequate, the permits will be modified to ensure adequate mitigation.” Docket No. 350. However, the next scheduled review of these permits by the Corps does not occur until near the end of the permitted “10 year” period. A former elected official who was called to testify on behalf of Intervenors said:

I believe anything that the Court needs to do to ensure [that the entire Pennsu-co be acquired by the public and managed from a fund paid for by the mining companies] is entirely appropriate .... My strong commitment is to see that the rock miners do what they claim they were going to do, and that is to make sure that [the entire 13,000 acres of the Pennsuco are] added to the permanent protection of the Everglades by public ownership, and I will be very disappointed if there’s any question about that going forward.

Tr. 3448-49 (Richard Pettigrew). The Corps evinces a disregard for the public participation requirements of the CWA and NEPA when it modifies permits without first alerting the public to substantial changes, e.g., significant alterations in mitigation requirements. The failure to provide adequate mitigation for lost wetlands indicates that the Corps’ public interest review, 33 C.F.R. § 320.4 (a)(1), was flawed.

228

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The controversial “land swaps” reveal that permittees who have transferred property in the Pennsuco to public ownership, i.e., Florida Rock and Tarmac, have done so only in exchange for other property to be mined.

229

It is unclear what appraised values were utilized for those per-mittees’ acres in the Pennsuco, or in other areas in which mining is prohibited under the permits. For example, on Nov. 25, 2003, the State of Florida approved a land exchange in which the state gave permit-tee Florida Rock 238.9 acres located in areas where mining is allowed in exchange for 202.5 acres from the mining company, all of which are in areas where mining is prohibited.

230

Another permittee, Tarmac, traded 320 acres of land it owned in the Pennsuco for mining-eligible land from the State of Florida.

231

These land exchanges raise questions as to whether the Corps is adequately monitoring the mitigation requirements to ensure land is being acquired in the Pennsuco.

232

The Court has

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doubts as to whether the mitigation being attempted at this point even remotely resembles the mitigation announced in the permits.

As a general matter, the Corps apparently is aware of its questionable record of wetlands permitting in South Florida. The Statement of Finding (“SOF”) for Regional General Permit SAJ-86, dated June 30, 2004, includes the following:

Northwest Florida is environmentally pristine with little development when compared to other parts of the State. With the increasing development pressure, it is expected that without some proactive environmental approach, the landscape would be fragmented, and densely developed, mirroring many areas found in South Florida.

P. 16 of SOF, Exh. 4 to Docket No. 52, Case No. 3:05-cv-00362-TJC-TEM,

Natural Resources Defense Council v. United States Army Corps of Engineers

(also page 3816 of the related administrative record in that case). This statement by the Corps is noted by Judge Corrigan in his decision to approve the Corps’ actions (issuance of a regional general permit for housing development in northwestern Florida) “by the slimmest of margins.”

Sierra Club v. Army Corps of Engineers,

464 F.Supp.2d 1171, 1176 (M.D.Fla.2006). “[T]he Corps [felt that] its experience in South Florida ... left wetlands insufficiently protected.”

Id.

at 1228 .

233

■

The record before the Court in this case reveals that the Corps failed to include sufficient plans for mitigation in these permits. This failure exposed those plans to requests for substantial changes by the permittees and left the Corps with few enforceable terms. That result supports this Court’s conclusion that these permits suffered from fundamental flaws when they were issued and that those flaws have not been remedied; consequently the mining pursuant to these permits must stop until the SEIS is completed.

The long awaited littoral shelves

A senior Corps staff member admitted that the permits’ requirements relating to the construction of shallow borders, i.e., littoral shelves, along the quarry pits “[are] an example of where [the Corps] did not get the ‘detailed monitoring plan’ into the permit before issuance.” SAR 1280 (email message between Corps staff members, June 2003). This appears to be yet another violation of the Corps’ governing regulations which require that permit conditions be “reasonably enforceable.” 33 C.F.R. § 325.4 (a). As part of their mitigation requirements, the permits required the mining companies to submit a design proposal for the construction of littoral

*1254

shelves based upon data from existing littoral marshes before April 2004, and then to construct littoral shelf wetlands prior to the expiration of the permits in 2012. In the “Three Year” review report, the Corps notes that the EPA has approved of the permittees’ proposed littoral shelf design. It also notes that the Corps “plans to determine, no later than 31 December 2009, the exact locations of the littoral shelf mitigation” to be constructed.

234

A Corps staff member, after having first announced an intent to “rely pretty heavily on [noted expert] George Dalrymple, since he’s the one on our [Lake Belt Mitigation] subcommittee ... with the most field time in the Lake Belt area ... and ... he was one of the evaluators for the ... process that determined the functional values of, for instance, the littoral areas as contemplated in the permits.” SAR1270 (message from Corps staff member to DERM staff member, May 27, 2003),

235

then ignored Mr. Dalrymple’s strong criticism; the Corps staff member noted that the report simply was “not the best thing I’ve ever seen, but I feel like we just need to finalize and move on.” SAR1278 (email between Corps staff members, June 2003). This suggests that, yet again, the Corps chose expediency over enforcement. The NEPA CEQ regulations mandate that federal agencies will use “existing credible scientific evidence,” 40 C.F.R. § 1502.22 (b) and “accurate scientific” information, 40 C.F.R. § 1500.1 (b). The Corps’ rush to judgment guarantees neither of these regulatory directives will be followed.

Groundwater seepage issues

The Court’s previous Order addressed the insufficiency of the Corps’ analysis of the potential seepage impacts of the mining activity and found that the Corps’ failure to consider these indirect effects

236

rendered the EIS “fatally flawed.”

Sierra Club,

423 F.Supp.2d at 1319 .

237

Testimony and additional evidence supports the

*1255

Court’s earlier conclusion. The record to date clearly illustrates that the groundwater in the area of the Lake Belt moves generally toward the east, that the void left when the mining pits are excavated reduces the amount of natural resistance to seepage that is observed when the limestone rock is left undisturbed, and that there are ongoing studies regarding the cost and effectiveness of various proposals for the mitigation of seepage. This eastward movement is driven, at least in part, by the higher water levels in the Water Conservation Areas and in Everglades National Park (located immediately to the west of the Lake Belt mining areas).

The highest water levels in Dade County are maintained in Water Conservation Areas 3A and 3B. The September average water levels are about 10 to 11 ft above sea level along the Dade-Broward County line in Conservation Area 3A, and about 7 to 8 ft above sea level in Conservation Area 3B .... During the wet season, ground-water seepage from the water-conservation areas is partly captured by the peripheral canals, but large quantities of water pass under the canals or across the canals, especially through openings in the south bank of the Tamiami Canal. From a regional perspective, ground water moves eastward or southward from the water-conservation areas to the sea. Canals, control structures, or large well fields cause local variations in flow pattern. Although the highest monthly average water levels occur in September, nearly all of the urbanized areas of Dade County have water levels less than 4 ft above sea level during that month. The lowest water levels are within the cones of depression around the major well fields .... low coastal water levels and the low, but continuous, seaward gradient ... indicate the very high transmissivity of the aquifer, the high degree of interconnection between the aquifer and the canals, and the effectiveness of the present canal system in rapidly draining floodwaters .... The contour map of average water levels for April, near the end of the dry season, indicates the same ground water flow pattern as under wet-season conditions. However, the average water levels and the water-level gradients are lower in the dry season than in the wet season .... The largest declines (about 2-3 ft) occurred from the area east of Everglades National Park to just east of Krome Avenue.

Hydrogeology of the Surficial Aquifer System, Dade County, Florida, USGS Water Resources Investigations Report 90-4108, dated 1991, by Johnnie E. Fish and Mark Stewart, pp. 44, 47 (citations omitted). The Corps’ failure to study this issue in more detail prior to authorizing these mining permits in April 2002, violates the NEPA CEQ regulations, 40 C.F.R. § 1502.22 (b) and 1500.1(b) which require the use of credible scientific evidence and accurate science. As noted above, the Corps has failed to provide for adequate mitigation of groundwater issues, in violation of 40 C.F.R. § 1502.14 (f). The 404(b) Guidelines also require that the Corps account for obstruction of groundwater flow, and any changes in the hydrological regime, 40 C.F.R. § 230.11 (b); this includes consideration of currents, and substrate characteristics, 40 C.F.R § 230.11(e).

ENP noted that the mining was proposed to be as close as 1,000 ft to the L-31N levee, which would directly impact the hydrologic conditions in the adjacent marshes of ENP, and that “mining has never been permitted this close to a primary water supply conveyance canal, such as L-31N.” AR825. Mining in the first ten years is permitted as close as 1,000 ft from the L-31 canal. AR977 (email between Corps staff and others, dated February 15, 2002) (“[W]e are only permitting 1/2 of the

*1256

2,000 ft buffer [in which ENP objects to ] mining.” AR977.) During the hearing, Intervenors’ counsel referred to the following statement in the 2006 modification to the Kendall Properties’ permit:

The overall permitted acreage for fill has not expanded beyond that originally authorized. The modification must be completed in accordance with the ... enclosed construction drawing which replaces [the drawings] from the original permit.

Plaintiffs’ Exh. 73 (April 18, 2006, permit modification). The Court has compared the two drawings, and concludes that the “10 year mining plan” revised July 2005 (attached to the 2006 permit modification) appears to allow mining further to the western edge of the property than did the “10 year mining plan” map included with the original permit, AR1047, p. 24. The original permit specifies that

no mining will be permitted within 2000 feet of the L-31N levee until June 30, 2004, while the Corps continues to refine its seepage analysis in this area. If the land within this 2000-foot strip covered by this permit is not purchased for a public purpose by June 30, 2004, mining is permitted to proceed. If at anytime after June 30, 2004, the Corps determines this land is necessary for a public purpose, mining will continue until the purchase is complete.

AR1047, p. 10.

The Court understood the testimony of Dr. Punnett (and others who addressed seepage issues) to be, essentially, that while the mining lakes

will

have an effect on seepage, it isn’t clear yet how much of an effect the lakes will have. Also, it is possible that even if the mining lakes increase groundwater seepage significantly, it may not have a harmful effect because some seepage is beneficial to the system, i.e., by keeping saltwater from intruding in the Aquifer or keeping freshwater from leaving the conservation areas. The witnesses also testified that the planning for Everglades restoration projects suggests that the presently engineered hydrological system (canals, pumping stations, etc.) will change significantly, possibly rendering many of the results of the present seepage models less than useful. Tr. 3707-15 (Dr. Richard Punnett). The Court will address a select few other aspects of the seepage issue below, but at this point is unable to determine anything other than that the Corps must not ignore the issue of seepage. The Corps must assure the public that the seepage impacts from already existing mining pits — including those recently added and any others to be added — are being adequately mitigated for, if necessary.

238

The Court also has been advised that the Everglades restoration planning process is evaluating the potential impacts of seepage throughout the system. The L-31N canal running along the eastern edge of the Everglades National Park and to the west of the Kendall Properties Krome Quarry (mined by Rinker), contributes to the seepage from the Park. At least one seepage mitigation proposal includes installation of a barrier underground between the canal and the adjoining property or quarry pit. Other projects being proposed through the Comprehensive Everglades Restoration Plan (“CERP”) process include raising the canal height, or introducing additional water from the regional system. The likelihood of success of the latter proposal seems to be limited by current restrictions on withdrawals of water from the regional system. Miami-Dade County’s request to increase its with

*1257

drawals of fresh water from the Biscayne Aquifer and the regional water supply by approximately 30% over its current 346 MGD was denied a few years ago by the State.

239

In sum, while it appears that analysis is occurring regarding the acknowledged effects of the quarry pits on seepage, the permitted mining activity has continued without change — rendering it difficult to establish baselines against which impacts may be measured and mitigation required. The mitigation fee imposed on Kendall Properties for seepage impacts generates approximately $50,000 annually, or approximately $380,000 over the course of the permits (based upon an estimated 535 acres of impacts times 71,428 tons per acre mined each year by Rinker). Tr. 5775 (Glusac). This amount seems somewhat meager in comparison to the costs of the construction and restoration projects that have been discussed in this case. The Corps, therefore, has failed to require adequate mitigation as of this date. Again, it appears that the Corps has evolved its mitigation-related requirements throughout this process with seemingly little attention to their governing regulations and statutory duties while exerting far greater attention and resources on expediency for the benefit of approving continued mining. As one of the Intervenors’ witnesses suggested, the Court “could require monitoring to see if seepage, in fact ... has been exacerbated, and that appropriate steps would have to be taken ... to mitigate for that.” Tr. 3428-29 (Pettigrew). While the Court finds that additional monitoring undoubtedly would be helpful, the Court’s proper role at this time is to vacate these permits and direct the agency to monitor the seepage that has occurred.

240

IV. Defendants’ lack of compliance with ESA, NEPA, and the CWA resulted in the “take” of wood storks through foraging habitat destruction; Defendants also failed to recognize that other protected species are in the mining area

Plaintiffs prevailed on their claims that the Corps and FWS erred by deciding not to enter into formal consultation under the ESA regarding the potential impact on the wood stork population and by not taking required steps to protect other species. Order, 423 F.Supp.2d at 1368-79 . In the “Three Year” review report, the Corps maintained the position, which already had

*1258

been criticized by the Court as problematic, that the mining plan was “not likely to adversely effect the wood stork.” Docket No. 103.

The Corps subsequently has published a Biological Assessment, Docket No. 240, filed August 28, 2006 (“BA”), and the FWS has completed its Biological Opinion, Docket No. 241, filed September 1, 2006 (“BO”), which announces that — unsurprisingly— the wood stork

will

be adversely affected.

241

The Biological Opinion makes a specific statement as to the “take” of the species

242

which is occurring from the ongoing mining. FWS estimates that mining “will result in reduction in the production of as many as 1.8 wood storks per year, which equates to 18 nestlings over the duration of the 10-year permit.” BO, p.

59.

243

Of the 1400 nests in the Tamiami West wood stork colony in 2001, “it’s quite likely that most of those failed.” Tr. 899 (Dr. Gawlik).

These losses will occur because mining over the “10 year” period “will result in the direct loss of about 4,521 acres of wetlands, of which 1,281 acres are considered suitable for foraging by wood storks” due to the location and particular qualities of these wetlands. BO, p. 57.

244

Generally, wood storks forage in wetlands within 25 km (approx. 15 miles) of their colony site; the Lake Belt area east of the Penn-suco wetlands (which are located along the western edge of the central Lake Belt area) is within 25 km of a colony of wood storks identified as the Tamiami West colony. Tr. 820-22 (Dr. Gawlik). The Biological Opinion reports that, even after accounting for mitigation to date, there is a predicted “net loss of 181 acres [of very short hydroperiod wetlands, which may be very desirable foraging habitat].” BO, p.

59.

245

The Biological Opinion explains that because wood storks seek areas which are not covered with a dense tree canopy and hunt for food in shallow wetland areas where fish concentrate during the dry sea

*1259

son, experts classify wetlands with dense melaleuca as less favorable for foraging than wetlands without such tree coverage. Dr. Dale Gawlik, who has impressive credentials as to research on wading birds and their habitats in South Florida,

246

testified that the most important factors are the proper water depths and food density. Tr. 831. In addition, wood storks selectively use different wetlands depending upon the extent of drying of the area. P. 16. Dr. Gawlik testified as to his extensive research on the wood stork and his findings regarding the difficulty of the birds’ search for food. Tr. 817 (Dr. Gawlik). “They depend in South Florida on these concentrated patches of prey. These animals are not particularly efficient feeders when prey are dispersed, but they’re very efficient when prey are concentrated.” Tr. 819 (Dr. Gawlik).

The Biological Opinion was issued just ten days after senior FWS staff member Paul Souza testified to this Court that the impact of the mining activity planned for the period leading up to late 2007, i.e., when the SEIS is due to be completed, “is impossible to measure and certainly would not rise to that level of injury or death that I mentioned previously.” Tr. 3078 (Sou-za). Mr. Souza based his testimony on his visit to each of the sites where the permit-tees indicated that they would be mining in the next 18 months. According to Mr. Sou-za, “it’s a combined situation, where it’s a function of where those lands are in the mining sequence and Melaleuca.” Tr. 3129 (Souza). Noting that the wetlands to be mined in the next year and a half had “largely been impacted already by some part' of that sequence of mining or have a significant amount of Melaleuca,” Tr. 3073 (Souza), Souza testified that there will be no adverse effect. The Court finds this reasoning troubling. The failure to perform an adequate environmental analysis before these permits were issued created the presently observed situation; acres of wetlands — perhaps what would have been suitable foraging habitat — now are denied protection because they have “been impacted already.” Tr. 3073 (Souza). Defendants’ actions have violated the ESA, the NEPA, 42 U.S.C. § 4332 (c)®, and the CWA, 33 U.S.C. § 1344 (c), as each of these statutes require agencies to take endangered species into account.

The Defendants have failed to acknowledge that additional clearing and wetlands destruction continues under these permits; this Court previously rejected Defendants’ attempts to use the “already degraded wetlands” argument to justify the continued mining.

Sierra Club,

423 F.Supp.2d at 1295 n. 49, 1330, 1373 n. 275. Such self-generating justification for further destruction is simply improper in the context of the facts of this case and in light of the important regulatory duties being neglected by the Defendants. As noted by Plaintiffs’ counsel in closing arguments, the CWA protects all wetlands.

247

“Most wet

*1260

lands constitute a productive and valuable public resource,” 33 C.F.R. § 320.4 (b)(1), and, specifically, those wetlands “which serve significant water purification functions” are considered to “perform functions important to the public interest.” 33 C.F.R. § 320.4 (b)(2)(vii).

Souza testified that “roughly a thousand acres of wetlands had been mined, had been impacted” through 2005, Tr. 3093, “[a]nd I believe through that time maybe a similar number, maybe a thousand acres had been cleared. But ... I’m not certain.” Tr. 3093 (Souza).

248

Clearly, if the proper level of analysis had been performed prior to issuance of the permits then wood stork foraging habitat could have been conserved from among the more than two thousand acres of wetlands which have been destroyed as of this date. Moreover, the NEPA CEQ regulations mandate that these type of permitting decisions be based on “existing credible scientific evidence.” 40 C.F.R. § 1502.22 (b). The lack of specific information about the number of acres of suitable habitat is just one example of the Defendants’ failures to properly consider the protection of this endangered species, in violation of the ESA, NEPA, the CWA, and the respective regulations, e.g., those governing the Corps, 33 C.F.R. § 320.4 (a)(1), as well as the CWA 404(b) Guidelines, 40 C.F.R. § 230.10 (c)(1).

Despite earlier predictions that no protected species were involved in this area,

249

the Corps now has identified the threatened eastern indigo snake, but concluded that the mining activities “may affect, but [are] not likely to adversely affect” the snake. BA, p. 9. In addition, FWS identified that the endangered Cape Sable seaside sparrow and the endangered Everglade snail kite may occasionally be present in habitats near the project area. FWS concluded that the proposed mining activities “may affect, but [are] not likely to adversely affect the Cape Sable seaside sparrow, the Everglade snail kite, and the eastern indigo' snake.” BO, p. 4. Recall that in March 2002, the Corps’ Revised Public Notice regarding the permits for the ten years of mining stated that the proposed project was “not likely to affect any known federally listed threatened or endangered wildlife species or their critical habitat.” AR737. For the Defendants to base the issuance of these permits in 2002 on their assertions that no protected species were likely to be affected, and then — after being forced to comply with their own regulations by this Court — to determine that three endangered species

*1261

and one threatened species

may

be affected by the

very same mining

that previously was studied, leads to little confidence in these agencies. Moreover, these same mining activities which were predicted to be harmless now, strikingly, support a finding of a “take” of the endangered wood stork' — all of which suggests that little deference to these agencies’ actions in this case is required by this Court.

The Court also is surprised that the Corps frequently modified these permits, shifting mining footprints of several of the mining sites to “correct” earlier maps which were included in the permit documents but apparently were outdated.

250

The result is that while, for the most part, the total number of acres to be mined by each permittee stayed somewhat constant, a different footprint of mining was approved through these modifications all of which were done without consulting with FWS. In one modification, acreage in a neighboring section (the maps identify mining sites by Townships, Ranges, and Sections — which are one square mile, generally) is exchanged for acreage as much as a mile away. Tr. 2802-04 (Studt). It appears that these modifications to the mining footprints were approved without site visits or analysis of the specific types of habitats in the previously excluded acreage which is being added to the permits.

251

According to the witnesses who testified knowledgeably about wood storks, the species forages as far as several miles away from its nest and each nest requires approximately 440 pounds of prey (comprised primarily of small fish) to support the chicks.

252

According to the witness who testified on behalf of FWS, and the Plaintiffs’ expert, Dr. Gawlik, the nesting season begins at any time from late November through March, Tr. 3073 (Souza), Tr. 1034 (Dr. Gawlik), and the success of the nesting season is a function mostly of natu

*1262

ral rainfall and hydrology, as well as human impacts on the hydrology of the environment.

In the years where we’ve had really low numbers, what we’ve seen is there has been an unseasonable rainfall in the dry season, after the nesting season had begun. So the birds came in and they attempted to nest, and then the water came through at a very high level which caused the birds to abandon those nests .... hydrology is the predominant driver of this function.

Tr. 3074-75. “[I]t is reasonable to suggest the value of foraging habitat in the area for wood storks will be greater than the habitat available prior to mining activities outlined in the 2002 permits.” BO, p. 60. The Court notes that this statement is conditioned on “[w]hen the full expected restoration and littoral shelves are complete” — a date which is at least several years in the future and may have little guarantee of ever arriving.

The senior staff member of FWS who testified before this Court said that he “[didn’t] mean to paint an overly rosy picture. I mean, clearly habitat loss is a real issue .... But, you know, it stands to reason would wood storks migrate north [to North Carolina] if South Florida habitat had not changed? I don’t know.” Tr. 3148-3149 (Souza). “[I]f you want to gauge whether wood storks are using short hydroperiods [wetlands] you need to look at that time [between November and March],” Tr. 3159. The witness admitted that the FWS “has not crafted or funded a Lake Belt mining footprint [wood stork] monitoring study.” Tr. 3159 (Souza).

According to the Biological Opinion, this permitted mining will lead to the death of an estimated eighteen nestlings over the ten years of the permits. It is heartbreaking to realize, five years into these improperly issued permits, that nine nestlings already have been lost

253

—particularly when this Court and the public were assured by the Defendants that this mining was not likely to adversely affect the wood stork or any protected species.

Sierra Club,

423 F.Supp.2d at 1318-19, 1368-79 . This result is directly attributable to the Defendants’ violations of the ESA in the issuance of these permits

254

and provides additional support for this Court’s decision that these permits must be vacated.

*1263

V. Clarifying the impacts and analyzing alternatives, the “public interest” review

The Corps’ decision to permit the mining despite the unavoidable adverse environmental effects detailed above, e.g., risks to municipal water quality and destruction of wood stork foraging habitat, was based upon the Corps’ decision that the public interest was better served by the production and sale of this limestone by the per-mittees. The Corps’ decision process exposes a fundamental flaw: the agency’s failure to give full consideration to alternatives to mining at this time, in this area, and in this quantity.

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[T]he economists ... opined that if limestone mining is halted in the Lake Belt during the remand period thousands of jobs will be lost in Miami-Dade County. The record evidence also establishes that billions of dollars of output and income will be lost. Public construction projects like roads, schools, hospitals, jails, and bridges will fail or falter. The mining companies and those businesses dependent upon them or their products will be shut down. The CERP will be compromised. South Florida will fall into a recession.... The funding source for mitigation fees needed to restore the Pennsuco, and to augment the Miami-Dade County water treatment plant will be lost.

Docket No. 352, pp. 60-62. These predictions of such extreme consequences, seat-tered with exaggeration, rendered many of the Intervenors’ arguments regarding “economic” impacts unpersuasive.

256

Indeed, this Court has spent excessive amounts of time discerning the actual facts from what the Intervenors have argued in their briefs' — their dramatic statements virtually obscure the facts.

The evidence demonstrated that the disruption that would be caused by

any

vacatur would be extraordinary — even under Plaintiffs’ questionable economic scenarios, vacatur would cost thousands to tens of thousands of Florida jobs. In fact, the evidence was clear that far more than jobs would be lost; vacatur would cost the Defendant Intervenors hundreds of millions of dollars, would cost the Florida economy billions in lost productivity, would halt vital public works projects and, ironically, would halt or delay environmental projects from Pennsuco restoration to the Water Deliveries Project intended to protect and restore the Everglades. Balanced against this tremendous disruption and

incontrovertible environmental harm

is the rank speculation of Plaintiffs that mining during the remand period may potentially cause some unmeasurable increment of environmental impact.

Docket No. 352, p. 113 (emphasis added). The Intervenors’ reference to “incontrovertible environmental harm” apparently relates to a possible delay of certain Everglades restoration projects;

257

however, it

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is unclear that such “harm” would be an unavoidable

258

and direct result of this Court’s decision to limit mining for a short term. At the hearing, Intervenors’ counsel suggested that any potential decision by this Court to set aside these permits would be the same as a decision to grant an injunction.

259

In any event, the Court has crafted the remedy imposed in this Order, and the partial stay thereof, to allow a limited amount of the permitted mining to continue until the SEIS is completed.

Consideration of alternatives to the proposed mining, as required by NEPA

The Corps failed in its duty to “[rigorously explore and objectively evaluate all reasonable alternatives” to the proposed mining. 40 C.F.R. § 1502.14 (a). The Corps’ EIS and ROD included illogical and senseless statements,

Sierra Club,

423 F.Supp.2d at 1333 , and it is clear from the record before the Court that the Corps never has identified the project’s purpose with sufficient particularity. The state of this record, including the vagueness in the Defendants’ descriptions of the precise impacts at issue in these permits, i.e., the number of acres to be destroyed and their specific locations, renders it impossible to assess properly any alternatives to the proposed mining.

The evidence presented at the remedies hearing did not cure the problem of vagueness in this record, e.g., it is still unclear precisely how many acres of wetlands will be destroyed under these permits.

Sierra Club,

423 F.Supp.2d at 1342-43 . The Corps’ casual approach with regard to the quantity of environmental impacts violates NEPA’s requirement that permitting decisions be based upon accurate scientific analysis, 40 C.F.R. § 1500.1 (b), as it is impossible to conduct accurate analysis if the facts themselves are inaccurate. It also seems unlikely that the Corps is monitoring the progress of the mining activity since, for example, the Corps has yet to consistently report the number of acres which have been cleared but not mined;

260

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nor does there appear to be a consistent definition of “cleared” acreage.

261

The Court briefly addresses the ever-changing who, what, where, and when of the mining pursuant to these permits.

Of the nine corporations receiving these permits in April 2002, three have been sold to other mining companies and two have leased their mining rights to other Permit-tees. Permittee/Intervenor Vecellio & Grogan, Inc., operating as White Rock Quarries (“White Rock”), purchased per-mittee Continental

262

for approximately $5 million in December 2004, Tr. 5563-64 (Hurley); White Rock also mines all of the property in APAC’s permit pursuant to a lease agreement. Tr. 5564-65 (Hurley). Permittee/Intervenor Rinker (which mines all of the acres in Kendall Properties’ permit) is in the process of being acquired by CEMEX (a Mexican multinational corporation).

263

Finally, Florida Rock recently was purchased by Vulcan Materials.

264

Thus, mining is being conducted by only six corporations: Tarmac, Sawgrass, Sunshine, White Rock, Vulcan, and CEMEX.

The Court previously noted that the Corps published inaccurate information about the impacts of Rinker (now CE-MEX), the permittee with the largest mining footprint under these permits, and that such information was misleading to the public.

Sierra Club,

423 F.Supp.2d at 1366 fn. 257.

265

Unfortunately, nothing in the extensive evidentiary hearing demonstrated that the Corps has since obtained a firm grasp of the number of acres being mined or impacted. The ROD itself announces various acreages as to each individual permittee, AR1028, p. 6, explaining that

[t]hree sources of the number of acres are used in this memorandum. This situation is the result of the long time that this project has undergone review. The first is the one prepared for the EIS and ... [describes] the “50 year”

*1266

plan. The second is the analysis conducted by Biological Research Associates (BRA) used ... to describe the 10 year plan. The third is one prepared by Fortin, Leavy, Skiles, Inc. (FLS) provided to the FDEP for the permits for the 10 year plan.... The actual impacts will be reported annually and the quantity of wetland compensatory mitigation required is linked to actual quantity.

AR1028, pp. 5-6

266

For example, as to White Rock, the ROD estimates range from 729 (FLS and DEP) to 941.7 (BRA) acres of impact.

267

An additional complication in tracking the environmental impacts of these mining activities is that some of the permits have been changed to allow mining in different areas than previously disclosed to the public.

268

Conditions imposed on the permits also have been modified, e.g., archaeological sites were destroyed inadvertently by mining at the beginning of the permit period and now the permittees are subject to additional conditions.

269

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The Court has little option but to attempt to clarity the acres of impact.

270

The following table summarizes the record regarding the anticipated number of acres of impacts and projected years for all per-mittees combined.

271

Acres of wetlands to be Years Source of estimate filled/impacted to do so

ROD, AR1028, p. 5 5,409 10

ROD, AR1028, p. 67 5,400 14

272

ROD, AR1028, p. 116 3,315 (i.e., 331.5 10 acres/year times 10 years)

Corps staff, Feb. 2002_MOO_16

273

BO, p. 2 4565.7 (plus 10 1146.5 of non-wetlands, for a total of 5712.2 acres)

The question of prior impacts from mining activities of these companies is similarly unanswered by this record. According to the ROD, slightly less than 5,000 acres of quarry pits existed at the time the ROD was issued in 2002, i.e., approximately 10% of the Lake Belt area already was a quarry pit. AR1028, p. 58. The Corps failed to establish a clear baseline before issuing these permits

274

—and instead relied on es

*1268

timates of impacts provided by the permit-tees (apparently based on aerial photos).

275

The following table summarizes the most current information, from multiple sources, regarding the number of acres to be mined or impacted by each permittee.

[[Image here]]

* Lake Belt 2002 Annual Report, SAR1231; Interim Lake Belt 2003 Annual Report, SAR1321; BO, Docket No. 241; ROD, AR 1028

As is evident from the table above, the estimated total impacts are generally much larger in the BO than in the ROD, particularly for two of the three permittees with the largest number of acres in their individual permit; White Rock (the BO indicates more than 100 additional acres of impact), and Tarmac (the BO indicates more than 170 additional acres). Further, the baseline

276

figures, i.e., the number of acres already mined as of the issuance of these permits in early 2002 — which should

*1269

be identical because they did not change, are substantially different for four of the permittees. The state of the record in this case reveals that the Corps clearly is not in command of the extent of the wetlands impacts from the mining authorized in these permits.

The Court has only briefly reviewed the specific locations of each of the mining operations specified in these permits,

277

with the assistance of Table 2 of the Lake Belt 2005 Annual Report (Plaintiffs’ Exh. 16), the most comprehensive and current source of information available in this record as to the mining activities.

278

A senior staff member at the Corps noted that “[f]or a variety of reasons, we never asked for the individual company’s estimates but instead used a consolidated estimate of mining per year.... the Permit is 330 acres per year.” SAR1283. At the hearing, the Corps’ witness admitted that there is no limit on the amount of mining or clearing that may be done at any time by the permittees, as long as they stay within the total number.

Several of the permittees have relatively little acreage remaining to mine under these permits, and nothing remaining to be devegetated. Tarmac is “running up against the end of ... [their] ten-year permitting,” and has cleared “virtually everything” they have a permit to clear, other than the restricted area in Section 10, Tr. 5064 (Townsend), “[areas that remain to be mined under the ten-year permit] are either prepared to be mined or in dense Melaleuca.” Tr. 4960 (Townsend). APAC has very little mineable property left that is not in the vicinity of the production wells and, therefore, already subject to the Corps’ double cross-hatched restriction (special condition 7 in the permits). Florida Rock has 294 acres to mine, and another 432 acres remaining to be cleared of vegetation. As admitted by the Corps, there are no specific limits on the number of acres per year to be mined by any particular permittee, nor as a collective total. Trans 2621 (Studt).

279

In short, the Corps’ errors include exercising little or no control over this mining.

Returning to the question of alternatives, the Court finds that the record evidence indicates that the Corps violated NEPA by failing to consider the “no ac

*1270

tion” alternative or other less damaging approaches to mining, particularly in light of continually mounting evidence regarding the potential contamination of the Wellfield. The Corps also improperly rejected the “curtail future mining” alternative, apparently because it was determined to approve the full planned fifty years of mining.

280

The Court already has addressed its conclusion that these permits were designed to “bridge” the period between when the Corps rushed to extend the mining companies’ expiring previously issued permits, and the time when the Corps could find support for the proposed “50 year” plan of mining.

Sierra Club,

423 F.Supp.2d at 1335-36 . In other words, it is evident that while these permits are labeled as “10 year” permits and limited to a specific number of acres (whatever that may be at any given time), they are intended as the foundation of a much more significant plan: to permit mining for at least another forty years (an overall mining period five times the amount of time addressed by the Corps in these permits).

281

The Corps failed to consider the benefits of denying future permits for mining in the area, and failed to consider the alternative of returning to the individual permitting approach previously used in this area. The Corps suggests that these permits are similar to other mining permits which have been issued and that the only difference with these permits is their larger “scope” in terms of years and acres, Docket No. 103; but it is that larger scope of permitted activity, even as to the ten years, that is the source of many of the fatal flaws of the Corps’ permitting process.

Failure to clearly demonstrate the absence of environmentally preferable alternatives

The Corps’ collective approach to these permits apparently influenced its decision that there wasn’t “sufficient” limestone available elsewhere — i.e., that there were no practicable alternatives.

282

From their initiation, these permits were designed to fail the test of practicable alternatives, 40 C.F.R. § 230.10 (a) (which the Corps first claimed didn’t apply), by including such a significant amount of mining that it would be impossible to find a substitute elsewhere.

283

For example, if a single company had sought a permit to mine only its

*1271

own portion of this area, and for only a few years, it may not have been able to rebut the presumption that practicable alternatives exist,

284

but a group of companies joining together and claiming that there wasn’t an alternative source with sufficient supply to replace a decade’s (or five decades’) worth of mining in this area presented a much more compelling need for the permits.

Intervenors admit that 13 million tons could be found over the remand period, Docket No. 352, p. 71 (citing Tr. 5957-58). It also appears that other sources of limestone may be able to be developed in the future; however, it has been suggested that developers of other mining locations may be hesitant to proceed. Dr. Jesse David, an economist who testified on behalf of Intervenors,

285

noted that “investors ... are going to have to consider the fact that at some point in the future the Lake Belt mines may be brought back onstream, either partially or fully. And if they’re attempting to serve those same markets from a more distant location, they’re going to be immediately out-competed when the Lake Belt mines come back. So there’s a huge risk for somebody to build a new mine for the purpose of serving the customers that are now served by the Lake Belt.” Tr. 5956.

286

The Court found Dr. David’s expertise in the area of environmental economics to be impressive. His Ph.D. from Stanford University, and his fifteen years of professional experience, rendered him competent to testify as to the impacts on the mining industry from any limits on future mining. However, the Court found Dr. Weisskoffs expertise as an economist to be more pertinent, particularly in light of his substantial experience investigating the impacts of Everglades restoration projects on the local and regional economy; Dr. Weisskoff has published a book, titled The Economics of Everglades Restoration, Tr. 1605 (Dr. Weisskoff). Dr. Weisskoff has almost four decades of experience, has a Ph.D. from Harvard, has taught at Yale and is a tenured professor at the University of Miami. Tr. 1592-99 (Dr. Weisskoff).

287

Notably, one of the permittees, White Rock, expressed concern about the “loss of customers” which implies that there are alternative sources of limestone available. “If we tell them we can’t do it, then they look somewhere else for another supplier.” Trans. 5792 (William Glusac). The fact that customers will go elsewhere for “another supplier” suggests that alternative sources for this rock exist. The Rinker

*1272

FEC quarry was the largest producer of crushed stone in the United States in 2004 (Aggregates Study, Part II, p. 6), and the company recently was purchased by a Mexican-based company, CEMEX — suggesting that the corporation may have resources with which to balance the effect of the Court’s ruling. Even prior to the purchase, Rinker’s limestone reserves in Lee County in the southwestern part of Florida, were considered to be “a replacement for Lake Belt [limestone] in the short term,” Aggregates Study, Part II, p. 21.

288

Despite the extensive amount of information submitted by the Intervenors regarding the predicted disruptive effects which may result from any prohibition on their mining activities, the Court finds that the Corps did not properly apply the re-buttable presumption that practicable alternatives exist, and because the Corps agreed to consider these multiple mining operations in a single permit, de

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