Sierra Club v. Flowers

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

HOEVELER, Senior District Judge.

THIS CAUSE comes before the Court on the parties’ various motions for sum

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mary judgment.

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This Court heard argument on October 22, 2004, and additional argument was heard on September 30, 2005. The following briefly summarizes the most salient facts of this case, all of which will be addressed in greater detail below.

In 1991 the limestone mining industry approached federal, state, and local government regulators with a sixty-year plan for mining in wetlands in southeastern Florida, in an area described by the industry as the “ “Lake Belt,” near Everglades National Park (“ENP”) and related water conservation areas in western Miami-Dade County. The mining plan included significant new areas of mining as well as continued mining in areas previously permitted, and required the destruction of tens of thousands of acres of wetlands located above the Biscayne Aquifer (the County’s sole source of drinking water) in order to reach the limestone rock below. The following year, the Florida Legislature established a Lake Belt committee to develop a plan that would “enhance the water supply for Dade County and the Everglades” as well as “maximize efficient recovery of limestone while promoting the social and economic welfare of the community and protecting the environment.” Fla. Stat. § 373.4149 . Later that same year, in anticipation of new permit applications and requests to extend previously issued permits, the United States Army Corps of Engineers (“Corps”) announced its intention to prepare an Environmental Impact Statement (“EIS”) for limestone mining which could impact approximately 54,000 acres of wetlands by the year 2050 in northwest Dade County.” AR65.

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Over the next several years a number of issues were raised for discussion and analysis by interagency groups and other committees, e.g., risks to protected species, extent of need for locally-produced limestone products, potential contamination of the Aquifer, and threats of additional inverse condemnation lawsuits (one of the mining companies, Florida Rock, had successfully sued the United States in the mid-1980s on a claim that the denial of permits for mining in this area was an unconstitutional taking of property, recovering $21 million for 1,560 acres

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). Analysis of these issues revealed that while the Lake Belt area contains large quantities of limestone, the mining would directly destroy wetlands, potentially contaminating millions of gallons of drinking water drawn daily from the Aquifer, and that the large

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deep pits which remain after mining would negatively affect groundwater seepage rates in and out of surrounding water areas, e.g., ENP; also, the remnant mining pits might compromise the larger program of Everglades restoration.

The Corps issued a final EIS in June 2000, AR614, which addressed the issuance of mining permits of fifty years each, for a total of 14,300 acres to be mined in the Lake Belt, including new and existing areas. The permit period later was reduced by the Corps to ten years, as an apparent compromise between the mining industry’s urgent demands that new permits (approx. 8,400 acres) be issued concurrently with extensions of soon-to-expire existing permits (approx. 5,900 acres), and the objections to the mining plan that were being raised by federal and state agencies, local government, private organizations, and individuals.

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The Corps issued a Record of Decision (“ROD”) in April 2002, AR1028, collectively approving the new limestone mining permit applications and extending the term of the previously-issued permits, for a total of approximately 5,400 acres of mining to take place in ten years.

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- The new permits had an initial three year review period, after which the permits could be modified, if necessary.

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Plaintiffs allege that the Corps erred in issuing the ROD and awarding the permits

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to members of the limestone mining industry to conduct mining activities for ten years on 5,400 acres without,

inter alia,

updating the EIS that had been issued two years earlier. Further, they allege that the United States Fish and Wildlife Service (“FWS”) failed in its duty to protect the wood stork, and other species whose habitats may be affected by the mining, by determining that the Corps’ actions were “not likely to adversely af-

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feet” those species — without FWS conducting its own full assessment of the situation. Plaintiffs have alleged 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.

The Corps and FWS (“Federal Defendants”) argue that the permitting process was handled correctly, over a multiple year period, with the involvement and subsequent concurrence of all major federal, state, and local agencies, and that deference ultimately must be shown to the federal agencies. They offer as evidence of their deliberative process that they ultimately reduced the originally requested permit period from fifty years to ten years, required that the permitted activities be evaluated after the first three years, and also imposed additional conditions in response to concerns raised by objectors. The members of the limestone mining industry (“Industry Defendants”), who were permitted to intervene in this action because of their economic interests in the subject of this litigation, argue that the permits were issued legally, with sufficient analysis of environmental impacts, and that a failure to permit this mining would result in an improper restriction on private property interests.

PROCEDURAL BACKGROUND

Plaintiffs initially filed their Complaint on August 20, 2002, in the United States District Court for the District of Columbia. The Federal Defendants filed an Answer and moved to transfer the action to this district, and members of the limestone mining industry filed a request to intervene as defendants.

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On August 4, 2003, the Federal Defendants’ motion to transfer was granted, and on December 30, 2003, this case was assigned to this Court. The Court granted the pending motion to intervene, and also granted Plaintiffs’ request to amend their complaint to include claims based upon new information submitted to the Corps after the permits had issued (in light of all defendants’ representations that they had no objection to such amendment).

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The Amended Complaint, filed April 6, 2004, seeks declaratory and injunctive re

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lief and specifically alleges the following violations by the Corps: 1) insufficient analysis in the EIS (Count V, NEPA and APA); 2) failure to prepare a supplemental EIS prior to issuance of the ROD (Count V, NEPA and APA); 3) issuance of the permits without sufficient analysis or opportunity for public participation (Count I, CWA and APA), and without completing the formal consultation process required by the ESA or otherwise protecting listed species (Count III, ESA); and 4) deficiencies in the agency’s response to Plaintiffs’ complaints after issuance of the permits— Plaintiffs had urged the agency to prepare a SEIS at that time (Count VI, NEPA and APA), and to stop the permitted activity pending a reevaluation of the agency’s decision (Count II, CWA and APA). Plaintiffs also claim that FWS’ concurrence in the Corps’ decision that no formal consultation was required and FWS’ failure to re-initiate consultation violated the ESA and APA (Count IV).

Summary judgment motions were briefed by all parties, and a full day hearing was held on October 22, 2004. The Federal Defendants subsequently notified the Court, on May 2, 2005, that the anticipated completion of the initial review process, specified in the permits to be conducted three years after the permits were issued, would be delayed. An additional hearing was held on September 30, 2005, at which time the Court posed several questions to counsel regarding the status of the pending initial review and issues related to the announced delay. Shortly after that hearing, Plaintiffs filed a request to dismiss, without prejudice, Counts II and VI of their Amended Complaint.

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As there have been no objections filed as to the question of dismissing

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these Counts, the Court will grant that request, noting that the claims may be renewed at an appropriate time.

THE STANDARD OF REVIEW

Clarifying the Claims and Record to Be Reviewed

The Federal Defendants argue that there is no cognizable claim under the ESA against FWS for failing to engage in formal consultation (Count IV) — but rather that such claims are to be reviewed under the APA — a point which Plaintiffs concede. The Federal Defendants also argue that this Court lacks subject matter jurisdiction due to an alleged procedural defect regarding Plaintiffs’ claim that the Corps failed to complete the formal ESA consultation process (Count III). The Court has examined the question of whether the Corps had sufficient notice of Plaintiffs’ intent to sue, and has determined that since Plaintiffs’ March 30, 2001, letter, AR793B, specifically incorporated their September 25, 2000, notice of intent to sue, and because it is clear from the record that the Corps had information from Plaintiffs as to their claims, that it thus would not be error for this Court to address the substance of the allegations now presented by Plaintiffs. As noted above, the Court has dismissed Counts II and VI. There

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fore, in summary, the claims appropriate for review are those in Count I (Corps’ issuance of the permits/ROD in compliance with CWA and APA), Count III (Corps’ compliance with ESA), Count IV (FWS’ compliance with APA), and Count V (Corps’ preparation of EIS, and failure to issue SEIS pre-ROD, in compliance with NEPA and APA).

Generally, judicial review of an agency action is limited to review of the record available to the agency at the time of the final action which forms the basis of the complaint. There are only a limited number of situations which permit a reviewing court to review extra-record materials— one of which is when an EIS is challenged, because such a challenge raises questions as to the sufficiency of the analysis contained therein.

Although the focus of judicial inquiry in the ordinary suit challenging nonadjudi-catory, nonrulemaking agency action is whether,

given the information available to the decision-maker at the time,

his decision was arbitrary or capricious, and for this purpose ‘the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court,’ in NEPA cases, by contrast, a primary function of the court is to insure that the information available to the decision-maker includes an adequate discussion of environmental effects and alternatives, which can sometimes be determined only by looking outside the administrative record to see what the agency may have ignored.

Suffolk County v. Secretary of Interior,

562 F.2d 1368 , 1384 (2d Cir.1977) (district court did not err in accepting extra-record evidence and testimony, but clearly erred in concluding that such evidence and the record revealed NEPA violations in preparation of EIS for proposed leasing of offshore oil and gas resources) (citations omitted, italics in original),

quoting Camp v. Pitts,

411 U.S. 138, 142 , 93 S.Ct. 1241 , 36 L.Ed.2d 106 (1973).

The parties have submitted the Administrative Record of the Corps (“AR”), including its supplement, on a total of seventeen compact disks, with an index alone that is more than 100 pages in length. The record consists of thousands of pages of reports, correspondence, maps, studies, tables, handwritten notes, and electronic mail messages, spanning the time period of 1980 — 2004. In addition, the Administrative Record of the FWS (“FAR”) consists of eight large binders, and includes additional materials on computer disk. The decision documents themselves total more than 1,000 pages, e.g., the EIS is 992 pages, including appendices. Subsequent to the amendment of the complaint, the Federal Defendants submitted a certified Supplement to Administrative Record (“SAR”), containing an additional approximately 150 documents dated as recently as April 27, 2004, and beginning as early as July 24, 2000.

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The parties have attempted to introduce materials that simply did not exist prior to the date of the ROD. For example, Plaintiffs offered the report of Dr. Stavros Pa-padopulos as to potential contamination of the Aquifer by mining activities, and his

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report was referenced in Plaintiffs’ correspondence to the Corps dated February-16, 2004. SAR1317. According to Plaintiffs, Dr. Papadopulos conducted a tracer dye study in April 2003 which suggests that Cryptosporidium and giardia, microorganisms which negatively affect drinking water safety, can travel faster/survive longer in water than previously thought.

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See

Am. Compl., Attachment 1. This information clearly is material to a comprehensive analysis of environmental impacts from mining; however, because this report was completed after the date of the ROD, the Court only cursorily reviewed the information contained therein to determine whether the substance of the report suggested that the EIS failed to analyze adequately the contamination risks.

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The recent submissions by the industry Defendants present a source of material that not only was not in existence prior to the ROD, but also was not any part of the administrative record (not even the supplemental record). For example, excerpts from the Lake Belt 2004 Annual Report, dated January 2005, are offered to demonstrate that the mining industry recently has been conducting water quality monitoring studies.

See

Docket Entry # 59, Exhibit A, Attachment l.

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The Court appreciates the efforts by the parties to amplify the record evidence, but despite this intriguing information accumulated by the parties after the issuance of the ROD, the Court has made its determination on the issues based upon the record — unless otherwise expressly noted — with each alleged agency action reviewed in light of the appropriate agency’s record through the date of that specific action.

The Relevant Statutes, Rules, and Regulations

The standard for granting summary judgment is so often applied that it is rarely examined; a brief study is instructive here, particularly in light of the constraints on judicial review of agency actions such as those challenged herein. The burden on the moving party is a high one: the weight of all the evidence, considered in a light most favorable to the non-moving party, must demonstrate the lack of a genuine, triable issue of material fact.

Celotex Corp. v. Catrett,

477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Under this strict standard, summary judgment is appropriate only if the record evidence shows that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. When the Court is reviewing an administrative agency’s decision, the summary judgment standard must be applied consistently with the mandate that great deference be given to agency actions.

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Plaintiffs have alleged violations of the APA and several environmental laws: NEPA, CWA, and ESA. The APA permits a court to set aside an agency’s actions, findings or conclusions only where they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706 (2)(A), or “without observance of procedure required by law,” 5 U.S.C. § 706 (2)(D). Courts have adopted the APA standard of review, specifically the “arbitrary or capricious”

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test, as to each of the environmental statutes at issue herein.

See, e.g., Marsh v. Oregon Natural Resources Council,

490 U.S. 360, 375 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989) (rejecting “reasonableness” standard of review in favor of APA’s “arbitrary or capricious” standard as to NEPA claims);

Preserve Endangered Areas of Cobb’s History, Inc., v. U.S. Army Corps of Engineers,

87 F.3d 1242, 1249 (11th Cir.1996) (applying “arbitrary or capricious” standard to CWA claim);

Fund for Animals, Inc. v. Rice,

85 F.3d 535, 547 (11th Cir.1996) (narrow “arbitrary or capricious” standard applicable to ESA claims).

“The court shall not substitute its judgment for that of the agency.” Preserve

Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Engineers,

87 F.3d 1242, 1246 (11th Cir.1996),

citing Citizens to Preserve Overton Park. Inc., v. Volpe,

401 U.S. 402, 416 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971). The principal purpose of the deferential review is “to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements about which courts lack both expertise and information to resolve.”

Norton v. Southern Utah Wilderness Alliance,

542 U.S. 55, 66 , 124 S.Ct. 2373 , 159 L.Ed.2d 137 (2004) (court can only compel agency to act when the agency had an enforceable duty to do so).

This deferential standard of review does not in any way suggest a “rubber-stamping” role for the judiciary; rather, the Court must “immerse” itself in the evidence in order to determine whether the agency decision was rational and based on consideration of the appropriate factors.

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See, e.g., Ethyl Corp. v. Environmental Protection Agency,

541 F.2d 1 (D.C.Cir. 1976) (en banc) (EPA had rational basis for promulgating regulations to reduce lead content of gasoline because lead emissions presented significant risk of harm).

The close scrutiny of the evidence is intended to educate the court. It must understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the ques

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tions addressed by the agency and those bypassed; the choices open to the agency and those made. The more technical the case, the more intensive must be the court’s effort to understand the evidence .... The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagency that can supplant the agency’s expert decision maker. To the contrary, the court must give due deference to the agency’s ability to rely on its own developed expertise.

Id.

at 36 . Importantly, deference to an agency’s decision is not required if the agency has failed to follow its own regulations. “The 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) (citation omitted) (agency did not follow its own regulations in accepting cash bid that was lower than credit bid offered pursuant to sale of surplus property);

see also, Sierra Club v. Martin,

168 F.3d 1 (11th Cir.1999) (agency decision not entitled to deference since decision violated National Forest Management Act and its implementing regulations by not gathering species data prior to approving timber sale).

The narrow scope of this Court’s review does not place blinders on the Court nor does it reign in the Court’s authority once it has determined that an agency has violated its own regulations. Indeed, the deferential judicial review of an agency’s actions should oblige that agency to disclose fully the reasoning behind its decisions in order to demonstrate clearly that such decisions were issued in compliance with governing laws — such candor would ensure that our nation’s environmental laws are respected.

ANALYSIS

1. INTRODUCTION

Although the permits at issue are described as being for 5,400 acres of mining over a ten year period, according to Plaintiffs, the Corps’ permitting decision was simply “the first phase of a much larger plan to transform more than 15,000 acres of Everglades wetlands to mining pits over the next several decades.” Am. Compl, at 2. Plaintiffs argue that the Corps’ reliance on reports prepared by or paid for by the permit applicants, i.e., the mining companies, improperly influenced the environmental analysis required by NEPA, the CWA, and the ESA — particularly as to the consideration of whether there were other available and environmentally preferable sources of limestone. Plaintiffs claim that the Corps violated NEPA by failing to fully consider the “no mining” or “curtail future mining” alternatives to approving the mining plan, and that the permits should not have issued because the permit applicants failed to demonstrate, as required by the CWA, that there were no practicable alternatives to permitting mining in the Lake Belt. According to Plaintiffs, the Corps’ EIS failed to analyze all direct, indirect and cumulative impacts resulting from the mining — particularly as to groundwater seepage, contamination of drinking water pumped from the Aquifer through wellheads in the Lake Belt, the destruction of endangered wood stork habitat, and increased urbanization — and that the ROD failed to provide an adequate discussion of what mitigation would be required for the inevitable adverse effects of the mining, e.g. the conversion of thousands of acres of wetlands into mined-out deep quarry pits.

Plaintiffs also attack the ROD, which included the Corps’ conclusion that the permit action would “not have a significant impact on the quality of the human environment,” for failing to adequately explain

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why mining was being approved despite the strong objections that had been raised by several governmental agencies and others. Plaintiffs argue that the Corps’ failure to hold a public hearing or to encourage public participation in the permitting process violated the CWA and NEPA; for example, Plaintiffs note that the public never received notice of the permits’ ten “special conditions” until the permits were issued, even though those “special conditions” revealed compromises as to the transfer of mined property to the public and other issues that had been the subject of substantial criticism.

In addition, Plaintiffs claim 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 failing to re-initiate consultation after the receipt of additional information on the wood stork’s habitat, as well as by not taking required steps to protect other species.

The Federal Defendants assert that the long agency review process was handled correctly and that Plaintiffs have not provided evidence that demonstrates that the reports provided by the mining industry were biased or that contradicts the industry’s reports. Mining has been ongoing in the Lake Belt area for decades, according to the Federal Defendants, and the Corps was required to consider the “economic hardship on the mining industry” and the “legal issues” that would arise if the permits were not issued. Reply Brief, Docket Entry # 42, at 4. According to the Federal Defendants, the EIS provided a comprehensive environmental analysis, and the ROD provided a sufficiently detailed mitigation plan; they also argue that the subsequent decision to reduce the amount of acres and the length of time for mining under the permits satisfactorily addressed the concerns that had been raised by objectors. The Federal Defendants also claim that the evidence regarding the wood stork population in the area does not establish that its habitat will be negatively affected, nor were any other species going to be harmed by the mining. As the Corps had received extensive written comments throughout the deliberative process, the Federal Defendants claim that a public hearing was not necessary; they also argue that a number of public workshops and meetings were taking place regarding the Lake Belt, and that they did not have to do anything further to encourage public participation.

At the hearing in September 2005, the Court heard argument from the parties as to whether it would be prudent to stay consideration of the undeniably ripe issues until completion of the initial, i.e., three-year, review of the permits.

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No consensus emerged, and the Court determined that it would be improper to delay decision on these issues — particularly if such delay were to be perceived as an attempt by the Court to provoke a particular agency action. This Court’s responsibility is simply to determine whether the Federal Defendants fulfilled their duties and not to determine whether a remand is “practical” in light of subsequent developments.

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The. Court has studied this case very carefully, and is disturbed by the fact that so many strong objections to the issuance of these permits had been raised by other governmental agencies, as well as by individuals, and that the administrative record reveals an urgency and pre-determination about the decision-making process that may have resulted in a less than full consideration of important issues. Most importantly, such a rushed approach

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to the agencies’ specifically charged duties is contrary to the dictates of the federal environmental laws, both procedurally and substantively, and leaves this Court with the inescapable conclusion that the decision-making process suffered from substantial deficiencies which resulted in agency decisions that were not in accordance with these laws.

At both the first and the supplemental hearing on the summary judgment motions, the Court heard extensive argument from learned counsel for all parties. Also, in addition to reviewing the decision documents and the parties’ briefs thoroughly, the administrative records of both the Corps’ and the Fish and Wildlife Service have been studied in great detail. The Court’s review has disclosed several areas of critical concern in the manner in which the agencies proceeded with respect to these permits. These areas are outlined below, and then addressed in more detail later in this opinion.

First, there is an underlying theme of pre-determination evident in the frequent reference by the Corps’ staff to the historical presence of mining in the area, the Corps’ swift rejection of suggestions that mining be stopped or limited, and the omnipresence of mining representatives and their reminders that the Florida legislature’s creation of a Lake Belt Committee indicated the state’s support for mining; additionally, the record reveals that Corps staff were fully aware that one of the permit applicants, Florida Rock, already had filed a successful regulatory takings challenge against the Corps in the early 1980s which resulted in a significant settlement in 2001, after the EIS was published.

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(The ROD describes the case and settlement. AR1028 at 37.) To the extent that this sense of inevitability permeated the agencies’ decision-making processes, there is a high likelihood that procedural safeguards, such as those enshrined in NEPA and the CWA, were overlooked or viewed as unimportant in light of the expected approval of the mining. The Court also is concerned about the perception, suggested by comments of Corps staff, that the Corps was “negotiating” with the miners, rather than serving as the regulatory agency

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charged with enforcement of

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this country’s environmental laws.

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The Court is mindful of the challenges faced by the agencies, many of whose employees clearly labored long hours to attempt to protect our natural resources while meeting the demands of this well-organized industry, but the Court cannot ignore the obvious: the Corps did not exercise the full range of its authority, but rather allowed negotiations with miners to result in procedural shortcuts and other abuses of the discretion that has been entrusted to the agency.

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Second, the urgency of the Corps’ actions, which is detectable at different points in the record, may have resulted in decisions that were arbitrary or capricious. For example, this urgency may have compromised the ability of objectors, including agency staff and members of the public, to fully voice their concerns — thus restraining the mandatory agency coordination and public participation that are vital elements of the federal environmental laws. The most clear evidence of the timing pressures faced by the Corps is disclosed in the EIS, which reported that if the Corps did not issue permits for mining before September 30, 2000, “then the mitigation fee [$.05 per ton of rock mined in the Lake Belt] will be suspended until readopted by the Florida Legislature.” AR614 at 100. The Corps’ earlier attempts to reach agreement with the miners on a higher mitigation fee (of $.08 per ton, AR560) had been unsuccessful, so the effect of this state legislation may have been to push the Corps to grant the mining permits, and to do so promptly, rather than risk the ability to collect substantial funds from the mining industry to pay for the required mitigation. This area of concern was expressed in communications between the agencies assembling the mining

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and mitigation plans and may have caused the FWS and EPA to decide not to pursue their objections further, even though their areas of concern apparently remained unresolved, e.g. potential groundwater contamination, adequacy of mitigation plan, etc. It is unclear whether each of the agencies’ objections actually had been addressed fully, or whether there was a concerted effort to reach agreement in order to keep the process moving toward granting the permits with a mitigation fee in place, or whether — as Plaintiffs suggest— the objections were not pursued further because of fear of reprisals within and between agencies.

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Finally, the Corps’ failure to take the time to hold a public hearing and its lack of meaningful engagement with the general public, i.e., not just the permit applicants or select environmental advocacy groups, stand as further evidence of the regrettable effects of rushing through such important environmental decisions. The examples above highlight the circumstances that lead to the ultimate and unfortunate result: certain of the agencies’ decisions lacked a rational basis and were not supported by the record before the agency at the time.

Third, the rush to finalize the permitting decision also may have compromised the analysis and scientific review that is vital to this type of endeavor, particularly as to the determination of an environmental baseline against which to measure impacts regarding groundwater seepage, and also as to the study of potential contamination of the Aquifer. One interagency group’s report makes several references to the compressed time schedule in which it was required to perform its analysis as to alternative scenarios for the mining, noting that very little empirical data was able to be accessed and analyzed.

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The Corps’ rush to issue the EIS (in order to be able to meet the September 30, 2000, permit deadline imposed by the Florida Legislature) may explain the notable absence of updated relevant scientific analyses. For example, of the 38 scientific references cited in the EIS, nearly half (sixteen) were at least twenty years old by the time that the EIS was issued, and only one had been published within the past five years. AR614 at 106.

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Also, the Federal Defendants admit that they did not engage in formal consultation according to the ESA as to any species, despite the confirmed presence of the endangered wood stork in the Lake Belt. Most importantly, Miami-Dade County, through its Department of Environmental Resources Management

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(DERM), raised strong objections to the mining and began the process of reviewing its wellfield protections (which prohibit mining within a certain distance from the wellheads in the Lake Belt area), and updating its wellfield protection ordinance, Chapter 24-12.1, Code of Miami-Dade County, to ensure that the setbacks were sufficient to accommodate the increased risks presented by the additional mining, AR1028 at 54, but the permits were issued before the County completed its study, and without the Corps conducting its own study.

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The County’s request for a public hearing, submitted in July 2000, AR654, was not even responded to until it was denied by the Corps in April 2002, AR1023. This failure by the Corps to adequately consider relevant factors mandates a remand to the agency for further deliberations.

Perhaps most significantly, the record does not reveal sufficient support for the Corps’ decision that there were no practicable alternatives to mining, nor have the briefs submitted by the parties satisfied the Court’s concern on this point. The regulations implementing the CWA, found at 40 C.F.R. 230.10, prohibit the issuance of a dredge and fill (into wetlands) permit if,

inter alia,

practicable alternatives exist. An alternative is “practicable” if it is “available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.” 40 C.F.R. 230.10(a)(2). There is a rebuttable presumption that practicable and environmentally preferable alternatives exist if the activity being proposed “does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not ‘water dependent’).” 40 C.F.R. 230.10(a)(3). In this case the Corps admittedly failed to make the presumption that a practicable and environmentally preferable alternative existed.

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The Corps disregarded this regulatorily mandated presumption because it determined that the proposed mining was water-dependent since the applicants had requested to mine in these specific wetlands; but this circuitous reasoning is improper. If the Corps had made the proper presumption, the miners would have been required to overcome the presumption by proving convincingly either that there were no practicable alternatives or that other alternatives, e.g., mining in other locations in South Florida, northern Florida, Alabama, etc., would have a more adverse impact on the environment. The Court has reviewed in detail the 1999 report of Paul Larsen, which was submitted on behalf of the mining industry, and upon which the Corps based its entire analysis of practicable alternatives.

31

After reviewing that report, the Court does not find record evidence to overcome the presumption that should

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have been applied by the Corps.

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That is, my reading of the 1999 report and the Corps’ discussion thereof, is that there appear to be practicable alternatives to mining in the Lake Belt; thus, if the Corps had not failed to apply the presumption that is mandated in the CWA regulations, such alternatives would have been investigated more rigorously and, perhaps, determined to be practicable and environmentally preferable.

While the Corps refers to its duties under the environmental laws throughout the decision documents, it also has stated that it must “weigh the rights the property owners have to use their property, the public need for material to construct houses, roads, schools, and other infrastructure, and potential ecological and economic impacts of [relocating mining to other locations].” AR637. Shifting the focus to the situation it inherited, and apparently attempting to argue that prior land use approvals for mining in or near the Lake Belt area left the Corps with little choice but to approve continued mining, the Corps notes that “[d]ecisions by the State of Florida, by Miami-Dade County and by other agencies contributed to the original decision by the landowners to locate their mining in this area.”

Id.

The record, taken as a whole, reveals that the weight given by the Corps to the above concerns was such that it overwhelmed the significant environmental factors, regarding the adverse impact of the mining in the Lake Belt, that should have been given greater weight.

To summarize, my specific concerns regarding the Corps’ determination that the mining required siting in these wetlands, and the agency’s consequent failure to presume that a practicable (and environmentally preferable) alternative existed, compel my conclusion that this case must be remanded to the agency for further analysis. The other issues identified above, e.g., the failure to conduct formal consultation under the ESA, the lack of disclosure of important information to the public, the rush to grant the permits before the County completed its wellfield protection studies, etc., offer additional support for the Court’s conclusion, as will be explained in more detail below. The Court has provided this rather lengthy introduction to assist the parties, and now turns to an expanded analysis of the points summarized above.

II. THE FACTS

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Southeastern Florida’s miles of densely populated oceanfront are matched in significance by thousands of acres of wetlands lying several miles to the west of the coastal urban areas. The wetlands are part of the Everglades ecosystem, stretching south from Lake Okeechobee to the Florida Keys, which has received international attention not only because of its ecological uniqueness, but also because of an unprecedented multi-billion dollar restoration program initiated in the past sev

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eral years.

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Restoration of the ecosystem is required because of the harmful effects resulting from decades of development in the area,

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spurred in part by the Corps’ own Central and Southern Florida (C & SF) Project, which provided, among other benefits, flood control for the coastal areas, thus allowing for their extensive urban development.

36

The C & SF Project Comprehensive Review Study (“Restudy”), authorized by Congress in the 1992 Water Resources Development Act (WRDA) with specific guidance provided in Section 528 of the 1996 WRDA, AR1152, examined the entire ecosystem and lead to the creation of the Comprehensive Everglades Restoration Program (CERP). The CERP study area, encompassing 18,000 square miles, includes 66,400 acres of marshes, reservoirs and recharge areas in Palm Beach, Broward, and Dade Counties, described as the East Coast Buffer, along with Water Conservation Areas (WCAs) to the west, i.e., constructed marshes designed to hold surface water for multiple purposes, including flood control, groundwater recharge, and fish and wildlife enhancement.

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The CERP is designed to provide an environmental buffer to the Everglades, seepage reduction for the water conservation areas, water supply benefits through groundwater recharge, and the enhancement of thousands of acres of wetlands that once comprised the Everglades.

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AR618 at 226. Presumably this program will lead to greater health for the multiple species which utilize these wetlands, including the endangered wood stork and threatened American alligator, both of which have been observed in the Lake Belt area. AR614 at 40-50, 672, 688-96. It should be noted that the CERP is only a study or policy document and does not itself authorize any projects, but rather recommends projects. Federal Defendants’ Reply brief, Docket Entry # 42, at 9.

All of these restoration efforts are particularly important to the health of the Biscayne Aquifer, an underground freshwater reservoir lying beneath most of Miami-Dade County and the primary source of drinking water for South Florida. AR1028 at 4. In October 1979 EPA officially designated the Biscayne Aquifer to be ‘the sole or principal source of drinking water for all municipal water systems [in southeast Florida].’ AR1176. The Aquifer, made of limestone-bearing materials such as shells, coral, and sand, begins beneath the wetland soils and extends to a depth of approximately 100 feet. AR614 at 27, AR1028 at 5. Miami-Dade County has taken steps to study and protect the quality of this important freshwater source,

38

and operates several public wells in an area known as the Northwest Well-field, which is described as “the largest drinking water wellfield in the State.” AR617 at 5.

39

The fifteen wells located in the Northwest Wellfield collectively draw water up from the Aquifer to supply 40% of the County’s drinking water.

40

AR617 at 5, AR1028 at 5. One of the County’s most important concerns is that the Aquifer not be subject to reclassification as “groundwater under direct influence” of surface water — as such a reclassification (from the present classification as “groundwater”)

41

would require a costly modification of the County’s regional water treatment facilities. AR1175.

42

Such modifications would be required in order to control the spread of disease-causing bacteria and other pathogens.

43

*1294

The “Lake Belt”

44

area includes 57,515 acres, or 90 square miles, AR1028 at 4, of “ecologically pristine, degraded, and developed areas” of wetlands, AR614 at 382, which form the northwestern edge of Miami-Dade County and border the eastern edge of Everglades National Park (ENP) and Water Conservation Area 3B (WCA3B)

45

See map, Appendix A to this opinion, AR614 at 16. The entire Lake Belt area is within the “Lower East Coast” region of the Restudy, see AR1152; CERP plans for the area include conversion of two quarry pits into reservoirs ringed with subterranean seepage barriers to protect the underlying Aquifer.

46

The Northwest Wellfield is located in the Lake Belt (toward its eastern border).

Mining in the Lake Belt area has been ongoing since the 1950s

47

and, as a result,

*1295

approximately 5,000 acres of quarry pits already 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 at 58. Indeed, rock mining and agricultural use already had altered approximately

30%

(i.e., approx. 17,254.5 acres) of the Lake Belt, primarily affecting the wetlands lying to the east of the Dade-Broward Levee, as well as those wetlands south of Tamiami Trail, i.e., closest to the border of Everglades National Park. In the remaining unaltered 70% of the area, the invasive and destructive melaleuca plant is expanding rapidly in a westerly direction, AR1028 at 4, due — at least in part — to the actions of the mining industry itself over the past decades.

Melaleuca, which has been declared a Federal Noxious Weed and a Florida Prohibited Aquatic Plant, negatively affects wetland functions and “threaten[s] the core of the Everglades ecosystem.” AR614 at 39-40, 382-83, 419.

48

Rock mining (and construction of required roads and large work pad areas) is one of the “[a]biotic factors that have influenced the current distribution of the cover types [including melaleuca] in the Lakebelt Region,” AR614 at 38-39, 383. This unnatural activity has shortened hydroperiods and disrupted surface water sheet flows, resulting in “the alteration of the historical long hydroperiod wetlands to shorter hy-droperiod prairies, causing shifts in vegetative species composition and species richness.”

Id.

“Since its introduction into South Florida in 1906, Melaleuca has become established in areas that were historically wetlands, especially those stressed by reduced hydroperiods.” AR614 at 39.

49

Mining not only has caused a greater infestation of the exotic melaleuca, but also “has created extensive areas of deep water habitat, which do not naturally occur in southern Florida.” AR614 at 39, 383. The mining industry claims that these lakes will be of recreational benefit and, moreover, that the lakes actually prevent the further spread of melaleuca — but the recreational benefits will be limited and the claim of melaleuca control is disputed.

50

In addition, the lakes are of questionable environmental value; for example,

*1296

the presence of the lakes increases the seepage of precious groundwater from other Everglades wetlands.

51

The deep lakes are particularly problematic when located in proximity to the L-31N Levee/Canal which lies near.the border of ENP, to the south of Tamiami Trail.

52

The L-31N “cuts through an area of extremely high groundwater flow, most of which originates from [the Park].... The key to improving water conditions in ..., especially for the Everglades, is controlling the seepage quantities now leaving the Park in a way that both minimizes the total amount of flow and returns as much of this flow as possible to the Park.... The quarries ... do result in an increase in groundwater flow to the east [i.e., away from the Park].” AR614 at 230, 241, and Appendix A. For example, studies suggest that mining the entire Krome Quarry tract (Kendall Properties, closest to the ENP boundary), when compared to mining only the previously permitted lakes, may cause as much as an 11% increase (i.e., an additional 3 cubic feet per second per foot (cfs)) in seepage from the Park during the dry season, AR614 at 244; the Pennsuco also may be affected, with an average reduction of 35 days in the length of its hydroperiod as compared to the situation of mining only the permitted lakes in the area, AR614 at 244.

53

It is beyond question that limestone is a valuable product of the environment, and

*1297

the record suggests that a good quality and quantity of limestone exists under the Lake Belt wetlands and other areas of Miami-Dade County.

54

The limestone rock resource found in the Lake Belt Area is of high quality. The resource is an important public resource needed for the continued growth and prosperity of the State of Florida. This was recognized by the State Legislature .... Rock in the Lake Belt is one of the few deposits in the State that meets Department of Transportation requirement [sic] for hardness and chemical content. Rock from the Lake Belt supplies much of Dade County and 40 percent of the State’s rock, sand and cement for concrete, asphalt and road base [see EIS, Appendix I], As other mining areas in the State are depleted, the Lake Belt Area is expected to supply a greater percent of the State’s rock in the future.

AR1028 at 82.

55

The mining industry also has attempted to establish that Lake Belt limestone is of particular importance to the entire State. “That Florida has extremely limited resources of construction grade rock is demonstrated by the fact that this expensive-to-transport material was used to build Cape Kennedy and Disneyworld [sic], both more than 150 miles north of Dade County.” AR209 at 1-2.

56

In addition to the existing quarry pits, agricultural uses, and melaleuea-infested areas, the Lake Belt also includes an area of relatively undisturbed wetlands, i.e., wet prairies of high functional value,

57

de

*1298

scribed as the Pennsuco

58

wetlands and comprising approximately 13,000 acres located west of the Dade-Broward Levee and north of Tamiami Trail. AR618 at 226, AR1028 at 4. Mining companies own a total of 46% of the Lake Belt, governments own 19%, and the other 35% is owned by private landowners.

59

Some of the mining companies own land in the Pennsuco, and the ROD reports that such property (approximately 9% of the miners’ total land in the Lake Belt) will be sold for wetland restoration. AR1028 at 58.

60

Approximately 331.5 acres (of non-Pennsuco wetlands) are planned to be mined in each of the first ten years — including some mining that was authorized under the previous permits. AR1028 at 116. (That totals only 3,315 acres of mining, but the ROD permits describe 5,409 acres of mining.)

To frame the issues in this case, it is important to have a basic understanding of the mining activities that are occurring as a result of these contested permits. “Rockmining is a heavy construction operation. It involves blasting, heavy equipment operations such as draglines and dozers, walking and driving over harsh terrain, involvement with rock crushing heavy equipment with long conveyor belts, driving heavily loaded trucks and other hazardous type activities.” AR1028 at 82.

61

“Heavy trucks transporting the rock to railroad loading sites add to the heavy traffic congestion,” AR1028 at 82, and “approximately 2,000 trucks serve the local market in Dade and Broward counties .... ” AR19 at 9.

62

“[M]ining ... involves unavoidable noise and certain amounts of dust.” AR19 at 5. The soil removed prior to blasting “is predominantly organic muck typical of [drained] Everglades marsh .... [which] overlies limestone bedrock.”

63

AR1028 at 56. “The

*1299

rock is excavated down to a depth of 80 feet [and after] excavation, mnck is placed back on the 100-foot-wide limestone shelf ____Upon completion of the mining activities, there is a total conversion of the physical substrate from a wetland to á deep lake with a 100-foot littoral shelf along its perimeter.” AR1028 at 56.

64

The “deep lakes” or quarry pits, which are between 60 — 80 feet deep, fill with water seeping in from the Biscayne Aquifer -with which the pits interact directly — and are added to by rainfall.

The mining companies sell the limestone rock and several related products, and at least two of the companies manufacture cement from the rock. The miners claim to need a 50 year plan to provide the certainty that they need to continue in business, AR610 at p. 8,

65

because of the “enormous capítol [sic] expenditure required by this industry.” AR19 at 9. They also assert that they expect permits to continue to be issued for mining.

The nature of the industry demands that considerable capital investments be made in heavy equipment and processing plants. These investments often have depreciation schedules greater than the length of a typical Permit. The industry recognizes that Corps permits have expiration dates, and, barring a change in the Clean Water Act, there is an expectation of continued permitting. This is not to say the permits cannot be allowed to expire or revoked, but that the basis for the permit termination should be based on new information on environmental or other impacts that indicate mining would be contrary to the public interest or be illegal under other laws.

AR1028 at 36.

66

While mining occurred freely in the 1950s and 1960s, the regulatory environment changed significantly in the late 1970s.

67

The United States, acting through the Corps, began requiring permits under the CWA for mining activities being conducted in wetlands.

68

The Coun

*1300

ty also, in 1975, produced its first Comprehensive Master Plan,

69

which, according to the mining industry, “recognized and approved the ongoing mining industry in the Lake Belt Area.” AR610 at 22. According to the County’s land use report prepared for inclusion in the EIS, rock mining is an allowable use in “general use” or “agricultural” zoning categories, AR614 at 59, which exist throughout most of the Lake Belt — with the notable exception of the Pennsuco wetlands, which are designated for “Environmental Protection” (although the area also includes some general use and agricultural zoning). AR614 at 62, 805 — 823, Appendix E, Lake Belt Land Use Report.

70

The exercise of regulatory jurisdiction by the Corps over the actions of one limestone mining company (Florida Rock, an intervening defendant in the present action), resulted in the commencement of litigation in 1982 challenging the denial of mining permits as an uncompensated regulatory taking. That litigation, as previously noted, appears to have played an important role in the relationship that developed between the mining industry and the Corps — as evidenced in the permitting process presently before this Court. Because of its importance,

71

and also because it represents a somewhat unusual interpretation of federal takings jurisprudence, the Court will address the

Florida Rock

case here in some detail.

At the commencement of the inverse condemnation action in the early 1980s, Florida rock conceded the legitimacy of the Corps’ permitting decision, i.e., the denial of a permit for three years of mining on 98 acres of wetlands.

72

In May 1985, the Court of Claims held that denial of the mining permit constituted a taking, thereby rejecting the Government’s suggestion that other uses for the property remained, and awarded $1,029,000 (i.e., $10,500 for each of the 98 acres, that had been purchased originally by Florida Rock for $l,900/acre).

73

Florida Rock Industries, Inc. v. U.S.,

8 Cl.Ct. 160 (1985) (then Chief Judge Kozinski).

74

The Federal Circuit reversed that decision. Although not disagreeing that a taking had occurred, the court noted that the Claims Court’s writ

*1301

ten findings — -which conflicted with that court’s earlier oral announcement

75

— that there was no threat of pollution to the wetlands related to the temporary turbidity caused by the mining, presented a potential conflict with the Corps’ right to exercise permitting authority and such conflict may have improperly influenced the takings determination. The court also noted that speculative future uses could be considered in the valuation of the property and that the fair market value, not the “use value formula,” should be applied.

Florida Rock Industries, Inc. v. U.S., 791

F.2d 893 (Fed.Cir.1986).

76

The Claims Court again, in July 1990, found a taking and reinstated the prior finding that the property was valued at $10,500 per acre. The court rejected the Government’s evidence of comparable sales and, instead, relied on Florida Rock’s demonstration that their property had suffered a 95% reduction in value because purchasers who were knowledgeable about the wetland restrictions would not pay full price for the property.

Florida Rock Industries, Inc. v. U.S.,

21 Cl.Ct. 161 (1990). The Federal Circuit, in 1994, again reversed the decision and the valuation method — criticizing the value placed on the property, and remanding for an analysis as to whether a taking actually had occurred, i.e., whether all economically beneficial use of the land had been denied.

Florida Rock Industries, Inc. v. U.S.,

18 F.3d 1560, 1562, 1564-67 (Fed.Cir.1994). For a third time, the Claims Court, in 1999, found that there had been a taking, noting that Florida Rock bought land and started mining before the CWA dredge and fill permit system was created, that mining was the only economically viable use of the property, that the property suffered a 73.1% decrease in value because of the permit denial, and that Florida Rock couldn’t recoup its investment by selling the property.

Florida Rock Industries, Inc. v. U.S.,

45 Fed.Cl. 21 (1999).

77

Shortly thereafter, the claims court also ruled that repeated applications for permits to mine the remaining 1,462 acres (of Florida Rock’s total 1,560 acres) would be futile, such that Florida Rock should receive compensation for these acres as well.

78

The court certi

*1302

fied its ruling for immediate appeal to the Federal Circuit.

Florida Rock Industries, Inc. v. U.S.,

243 F.3d 555 (2000). While the Government’s appeal of that decision was pending

79

before the Federal Circuit, the parties reached a settlement which dismissed the Claims Court judgment and the appeal.

Law of Wetlands Regulation,

pp. 10-15. The settlement for $21 million bears little relation to the early pronouncement by Chief Judge Kozinski that compensation for the entire 1,560 acres parcel would be $10,580,000, plus interest.

Florida Rock Industries, Inc. v. United States,

791 F.2d 893, 895, 897 (Fed.Cir.1986). Although there has been significant public opposition to this mining for the past several years, as demonstrated by the substantial number of objections lodged in the administrative record, the

Florida Rock

litigation was a powerful reminder of the financially costly consequences of the Corps’ permitting decisions.

80

In 1991, after its second victory before the Claims Court, the mining industry approached officials from the State of Florida, Dade County, and the Corps “with the idea of coordinating permitting” to “maximize limestone recovery”

81

by connecting adjacent quarries (instead of having to stop inside of property lines). AR19, AR1028 at 35. The industry also proposed to “utilize the resulting contiguous lake[s] for- public recreation” and to “restore a large contiguous area of the Everglades known as the Pennsueo.” AR1028 at 35. As part of their “South Florida Limestone Mining Coalition Year 2050 Fresh Water Lake Belt Plan,” the miners would mine 300 to 400 acres per year for approximately 60 years, for a total of 20,000 mined acres by the year 2050. AR22.

82

Apparently in response to the miners’ pitch, the Florida Legislature created a committee of agency and industry representatives to study and review future mining activities. The Dade County Freshwater Lake Plan Implementation Committee (“Committee”) was established, according to Fla. Stat. § 373.4149 , to “develop a plan which: enhances the water supply for Dade County and the Everglades, maximizes efficient recovery of limestone while promoting the social and economic welfare of the community and protecting the environment; and educates various groups and the general public of the benefits of the plan.”

The Committee was chaired by the regional water management district, the South Florida Water Management District

*1303

(“SFWMD”)

83

, and did not include any federal agencies as voting members. The Corps, EPA, and FWS all shared “ex-officio” status with selected Florida legislators. AR395, AR1028 at 35. Originally there were thirteen voting members on the Committee, four of whom were from the rock mining industry, and three of whom represented environmental organizations (including Plaintiff Sierra Club); two more members were added in 1994, AR395 at 15, 18.

84

At some point before June 2000, two additional non-mining landowners were added to the Committee.

In June 1992, the mining industry, acting as the South Florida Limestone Mining Coalition (Coalition) presented its “Year 2050 Fresh Water Lake Belt Plan” to the Committee. Environmental, land use, and water quality concerns were raised swiftly by DERM to the Lake Belt Committee, the SFWMD, and the Corps. AR44-46.

85

Immediately recognizing that the issuance of mining permits in these wetlands would constitute a “major federal action,” the Corps formally advised the SFWMD in July 1992 that an EIS was required, AR38, and in the fall of 1992 the Corps issued a “Fact Sheet” announcing that an EIS would be developed concerning a proposed area of 54,000 acres, including 19,600 acres of proposed lakes, 4,000 acres of existing lakes, 17,000 acres of constructed wetlands, and 13,000 acres of wetland preservation and maintenance areas.

86

The Corps previously had prepared an EIS on mining in this area in 1983, concluding that permit applications would be reviewed on a “case-by-case basis,” as it was “essential that mitigation requirements be flexible to reflect the needs of the people, the socioeconomic values and industrial demands, and future technical data .....” AR3. When the Corps conducted the EIS for the present mining, it abandoned its original approach.

Interagency discussions were held to prepare a scope of work for the new EIS and to identify partners for support of the endeavor. A meeting was held at DERM in October 1992 to discuss the necessary biological studies, and in November 1992

*1304

the FWS advised the Corps that, while the Service would cooperate on EIS preparation, it did not have funds for doing vegetative and wildlife and mitigation analyses. AR83. Also, the U.S. Geological Service declined to participate formally as a cooperating agency but offered to assist by providing any of its existing information. In December 1992, technical staff from SFWMD met with the Coalition and other agencies to discuss alternative designs for the environmental studies.

The Lake Belt Committee issued reports to the state legislature and initiated several studies designed to understand the function and quality of the wetlands within the' Lake Belt Area, including two-year studies initiated in 1994 on the functional value of the vegetation, wildlife, and existing lakes within the Lake Belt Study Area. Phase I of the Lake Belt Committee’s Report and Plan were submitted to the Florida Legislature in February 1997 (“Making a Whole, Not Just Holes”). AR433.

In January 1997, an Issue Advisory Team was created by the South Florida Ecosystem Restoration Task Force Working Group

87

to draw a map and analyze alternative mining scenarios. The Team included subcommittees to study mitigation and wellfield protection, and an agency sub-subcommittee that would debate the application of a functional assessment of the existing wetlands in order to reach an acceptable mitigation ratio. AR562. The issue team’s report was completed within a few months, and was presented to the Working Group in July 1997.

The Corps began circulating a preliminary draft of the EIS, with respect to mining on 15,800 acres over a fifty year period at least as early as 1997; additional review continued as the Corps began receiving comments on the draft EIS. In October 1997, the Florida Legislature issued a clear directive to the state and local agencies.

To further streamline permitting within the Miami-Dade County Lake Belt, the [DEP] and Miami-Dade County are encouraged to work with the United States Army Corps of Engineers to establish a general permit under s. 404 of the Clean Water Act for limerock mining activities within the geographic area of the Miami-Dade County Lake Belt consistent with the report submitted in February 1997. Miami-Dade County is further encouraged to seek delegation from the United States Army Corps of Engineers for the implementation of any such general permit.

Fla. Stat. § 373.4415 . “Further, the reclamation program shall maximize the efficient mining of limestone, and the littoral area surrounding the lake excavations shall not be required to be greater than 100 feet average in width.” Fla. Stat. § 378.4115 [amended 1999, 2001].

Applications for new permits already had been submitted to the Corps as early as July 1998,

88

and others were received while the Corps was preparing the EIS. AR1028 at ll.

89

In February 1999 the draft EIS, AR578, was distributed and it was published in the Federal Register on

*1305

March 8, 1999. AR614 at 895. Although strong objections were received from a number of sources regarding the EIS, the Corps continued drafting and circulating revised text for the permit templates, AR591, even though the Corps had yet to conduct an evaluation of practicable alternatives to the mining. In mid-December 1999, the mining industry provided a report prepared by Paul Larsen, “Analysis of the Practicability of Non-Lake Belt Alternative Sources to Supply Florida’s Demand for Basic Construction Materials,” which was included as Appendix I to the final EIS.

90

The final EIS was issued in June 2000, accompanied by a Public Notice of intent to issue permits for fifty years of mining. AR1028 at 11. A multitude of objections were received from environmental groups, AR666 (Sierra Club and others); individuals, AR775, AR786

91

, AR830; governmental agencies, AR669 (NPS), AR671 (FWS), AR705A (EPA), AR712 (Department of the Interior), AR791B (DERM); private corporations, AR579

92

, AR745; and the Miccosukee Tribe, AR605. Several requests for a public hearing were received. AR664, AR667, AR678.

93

In February 2001, the Lake Belt Committee submitted its Phase II plan to the Florida Legislature, and reported on the Committee’s record of monthly meetings

94

and the two major public meetings which it had held. All landowners in the Lake Belt had received notice of those public meetings and approximately 250 had attended each time; the Committee also had hosted

*1306

a series of stakeholder meetings in 1999. AR617. The Plan was adopted in June 2001, Fla. Stat. § 373.4149 , along with a Lake Belt Mitigation Plan, which imposed a mitigation fee of $.05 per ton of mined rock extracted from the Lake Belt, to be administered by the Florida Department of Revenue, with expenditures to be approved by an interagency committee. Fla. Stat. § 373.41492 (2). The interagency committee, which did not include any federal representation but did provide for the mining industry to have a non-voting position, met for the first time in November 2000, ultimately expanding its membership to include the leading federal agencies: Corps, EPA and FWS

95

Although the mitigation fee was to become effective as of October 1, 1999, the statute provided that the fee would be suspended if a “long-term permit for mining” was not issued on or before September 30, 2000.

96

Fla. Stat. § 373.41492 .

97

The original Lake Belt Committee continued to meet, and considered three plan scenarios, based on criteria described in the Committee’s 1995 “Initial Objectives and Measures of Success,” before selecting a “preferred concept” for the future mining.

The Corps issued a Revised Public Notice on March 1, 2001, which announced that the period of mining had been reduced to ten years with a reduced total mining impact of 3,959.07 acres,

98

and an initial review period after the first three years of mining. The Corps noted that “[ajctivities would not proceed after the [initial review date] unless the permits were specifically renewed with modifications, if needed.” AR737.

99

On October

*1307

10, 2001, EPA requested a strong voice in the three year review, despite the Corps’ apparent plan to not issue a public notice regarding the review; EPA also declared that it would not yet remove its objections to the permits. AR870.

The EIS had lacked any detailed study of the endangered wood stork, a protected species which had been observed in the Lake Belt Area, and the FWS had recommended denial of the permits, as explained in its correspondence to the Corps dated April 30, 2001. In an apparent attempt to remedy this omission, a Biological Assessment (BA) was prepared by the mining industry, AR82B, and submitted to the Corps and FWS in May 2001. After reviewing the BA, FWS provided its opinion that the proposed mining would not adversely affect the endangered wood stork. Shortly thereafter, DEP announced its intent to issue a permit to the first of the mining companies, Sunshine Rock.

100

In December 2001, FWS advised the Corps that it would not seek further review of the proposed permit, despite continuing questions about the adequacy of the mitigation plan. AR947/AR948.

101

On February 7, 2002, EPA announced that it would not pursue a higher level review. AR966. Lacking any further formal objections from its federal partners, the Corps issued the ROD on April 11, 2002, AR1028, with a corresponding press release. The Corps also advised the Miami-Dade County Manager that the County’s request for a public hearing was denied. AR1023.

The ROD specifically stated that “[t]he permits authorize a 10-year footprint but the EIS and this memorandum also describe the 50-year effect.” AR1028 at 59.

102

The Corps clearly was troubled by the question of water supply.

The need for additional water from the regional system [for delivery of water to restore the Everglades] is a difficult issue for the Corps acting under Section 404 of the Clean Water Act to address since the Clean Water Act reserves water supply aspects to the States. This issue is certainly recognized by the State and must be incorporated by the State in its water supply planning. Both resolution of this issue and the design of seepage avoidance/compensatory actions is best done in conjunction with CERP components related to seepage, which ... have complete [sic] dates of 2013 and 2014.

AR1028 at 52.. The Corps concluded, however, that “there are no practicable nor less damaging alternatives which would satisfy the project’s overall purpose [of providing construction-grade limestone from Miami-Dade County].” AR1028 at 59. The ROD estimates that between 4,390 and 7,544 acres of mitigation will be

*1308

required over the ten year period, depending upon the rates of mining in relation to the rate of acquisition of wetlands to be restored. AR1028 at 69. The completion of the initial review period was to have occurred at the end of the first three years, i.e., by April 11, 2005. Although the Federal Defendants advised the Court that the review probably would be completed by December 31, 2005, there still has been no report.

See

Plaintiffs’ Notice of Corps’ Non-Compliance with Proposed Review Schedule, filed February 17, 2006, to which no response was filed.

The Court now will address the specific Counts and further analyze the facts relevant thereto, based upon the Court’s review of the administrative record.

III. DID THE CORPS COMPLY WITH NEPA AND THE APA 706(2)? (COUNT V)

Plaintiffs allege that the Corps violated NEPA and section 706(2) of the APA by,

inter alia,

issuing an EIS that did not sufficiently analyze the direct, indirect and cumulative environmental impacts of mining, and did not disclose the existence of less environmentally damaging alternatives. Plaintiffs also claim that the Corps failed to provide a meaningful discussion of the aesthetic and recreational impacts of the proposed project, and didn’t disclose critical information, e.g., the existing conditions at the site of each proposed quarry, to the public before the permit decision was made.

A.

NEPA and its implementing regulations

In 1970, NEPA was enacted as “our basic national charter for protection of the environment,” 40 C.F.R. 1500.1(a), with a stated purpose of “promoting] efforts which will prevent or eliminate damage to the environment.” 42 U.S.C. § 4321 . NEPA contains “action-forcing” provisions to guarantee that federal agencies comply with both the letter and spirit of the statute, 40 C.F.R. 1500.1(a); a primary example of such provisions is the requirement of an EIS. An agency must prepare an EIS for any “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (2)(C).

103

It is undisputed that the Corps’ act of approving limestone mining by these permits constitutes a major Federal action.

“Challenges brought under [NEPA] are reviewed by the arbitrary and capricious standard, as defined by the APA.”

Sierra Club v. U.S. Army Corps of Eng’rs,

295 F.3d 1209, 1216 (11th Cir. 2002). The Court, therefore, must determine whether the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” 5 U.S.C. § 706 (2)(A). The Corps’ decision should be set aside “only for substantial procedural or substantive reasons as mandated by statute .... ”

North Buckhead Civic Ass’n v. Skinner,

903 F.2d 1533 , 1539 (11th Cir.1990) (agency preparation of EIS was not arbitrary or capricious regarding

*1309

construction of highway with median for mass transit). Although the Eleventh Circuit has cautioned that this standard is “exceedingly deferential,”

Fund for Animals, Inc. v. Rice,

85 F.3d 535, 541 (11th Cir.1996),

104

it nevertheless is not a meaningless standard. That is, the application of the standard must not be so deferential as to result in this Court serving as a consistent source of approval for agency actions, without regard to the facts presented. Indeed, NEPA is “designed to prevent agencies from acting on incomplete information and to ‘ensuref] that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.’”

Sierra Club v. U.S. Army Corps of Eng’rs,

295 F.3d 1209, 1214 (11th Cir.2002),

quoting Robertson v. Methow Valley,

490 U.S. 332, 349 , 109 S.Ct. 1835 , 104 L.Ed.2d 351 (1989). The administrative record here reveals several instances in which the Corps acted on incomplete information, in violation of NEPA, which will be addressed in further detail below.

In preparing an EIS, the Corps is required to follow its own regulations implementing NEPA, 33 C.F.R. 230.1, as well as the regulations promulgated by the Council on Environmental Quality (CEQ)

105

See, e.g.,

40 C.F.R. 1501.3, 1501.4, 1508.9, 1508.27.

106

An agency’s EIS report must include:

(i) environmental impact of the proposed action,

107

(ii) any adverse environmental effects which cannot be avoided if the proposal is implemented,

108

(iii) alternatives to the proposed action,

109

(iv) relationship between short-term uses of environment and maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would

*1310

be involved in the proposed action if implemented.

42 U.S.C. § 4332 (2)(c). The NEPA regulations had been interpreted at one time to require analysis of a “worst case scenario,” however this proved unproductive as it lead to limitless inquiries into highly speculative harms.

Robertson

at 354-56, 109 S.Ct. 1835 . The “worst case” requirement was replaced with a requirement that agencies, when “information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known,” must prepare a “summary of existing credible scientific evidence ... and the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.” 40 C.F.R. 1502.22(b);

Robertson

at 354-355, 109 S.Ct. 1835 . Impacts are “reasonably foreseeable ... even if their probability of occurrence is low, provided that the analysis of the Impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason.” 40 C.F.R. 1502.22(b).

Despite an agency’s temptation to include voluminous scientific material, an EIS should be “analytic rather than encyclopedic.” 40 C.F.R. 1502.2(a). “[I]t is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork -even excellent paperwork — but to foster excellent action. The NEPA process is intended to help public officials ... take actions that protect, restore, and enhance the environment.” 40 C.F.R. 1500.1(c). By overwhelming public officials with mountains of data or reports without concise analytical summaries thereof, an EIS may serve more to frustrate the goals of NEPA rather than to promote them. The EIS need not be “so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible.”

New York Natural Resources Defense Council, Inc. v. Kleppe,

429 U.S. 1307 , 97 S.Ct. 4 , 50 L.Ed.2d 38 (1976) (quoting

Natural Resources Defense Council v. Callaway,

524 F.2d 79, 88 (2d Cir.1975)). The document should be concise and clear. 40 C.F.R. 1502.1.

The Court must “look beyond the scope of the [challenged] decision itself to the relevant factors that the agency considered.”

Sierra Club

at 1216. As has been firmly established, the duty of the judiciary “is to ensure that the agency took a ‘hard look’ at the environmental consequences of the proposed action.”

Marsh,

490 U.S. at 374 , 109 S.Ct. 1851 (1989);

City of Oxford v. F.A.A.,

at 1351;

see also, Fund for Animals, Inc. v. Rice,

85 F.3d 535, 541, 546 (11th Cir.1996) (Corps not arbitrary or capricious in determination that an EIS was not required for decision to locate landfill in wetlands where no upland site was available); 546,

Skinner

at 1540.

110

“This duty requires the court to consider not only the final documents prepared by the agency, but also the entire administrative record.”

Sierra Club

at 1216. Thus, the Court’s role here is to examine in detail not only the EIS but also the entire record to determine whether the Corps considered all relevant factors.

The court will overturn an agency’s decision as arbitrary and capricious under ‘hard look’ review if it suffers from one of the following: (1) the decision does not rely on the factors that Congress intended the agency to consider; (2) the

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agency failed entirely to consider an important aspect of the problem; (3) the agency offers an explanation which runs counter to the evidence; or (4) the decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise.

Id.

(citing

Motor Vehicle Mfrs. v. State Farm Mutual Auto. Ins. Co.,

463 U.S. 29, 43 , 103 S.Ct. 2856 , 77 L.Ed.2d 443 (1983)). In the event that the court determines that the action is flawed, remand is the appropriate result' — thereby permitting the agency to reconsider its own reasoning and decision.

Sierra Club

at 1216.

While the Court looks to the entire record to see if the agency took a “hard look,” the final determination is made based only upon the NEPA documents themselves, in other words, the Federal Defendants cannot rely on matters in the administrative record to “correct” errors in the EIS, for NEPA requires that the material be included in the EIS, or a supplemental EIS.

Sierra v. Marsh,

976 F.2d 763 (1st Cir.1992) (can verify that EIS is sufficient by reference to record, but cannot rely on record to bolster insufficient analysis in EIS). This is consistent with the statute’s mandatory public participation, discussed below, for it would be unreasonable to expect members of the public to search through an entire administrative record in order to find critical environmental information; rather, one must be able to rely on the EIS, or the SEIS, as a comprehensive and accurate guide to the environmental issues presented by the proposed activity. In essence, an EIS has “twin functions” — preparation of the EIS is designed to require agencies to take a hard look at the consequences of the proposed action, and the distribution of the EIS “provid[es] important information to other groups and individuals.”

Robertson

at 356, 109 S.Ct. 1835 . An EIS must “detail the environmental and economic effects of proposed federal action ‘to enable those who did not have a part in its compilation to understand and consider meaningfully the factors involved,’ and to compel the decisionmaker to give serious weight to environmental factors in making discretionary choices.”

Sierra Club v. Morton,

510 F.2d 813, 819 (5th Cir.1975)

111

(footnote omitted) (quoting

Environmental Defense Fund, Inc. v. Corps of Engineers (Tennessee-Tombigbee Watenvay),

492 F.2d 1123, 1136 (5th Cir.1974)). An EIS must, at a minimum, alert the reading public to all known possible environmental consequences.

Sierra Club v. Sigler,

695 F.2d 957 (5th Cir.1983).

Having reviewed the controlling precedent, the Court now turns to the specific facts found in this administrative record and measures each claim against the statute’s requirements.

1.

Environmental impact of the proposed action

The EIS must account for direct, indirect, and cumulative impacts of the proposed action. 40 C.F.R. 1508.7, 1508.8;

City of Oxford v. FAA,

428 F.3d 1346 (11th Cir.2005);

C.A.R.E. Now, Inc. v. F.A.A.,

844 F.2d 1569 (11th Cir.1988). While direct effects are easy to identify, the consideration of indirect effects requires more careful study of an action and its consequences. The CEQ regulations define “indirect effects” as being later in time or farther removed in distance, but still reasonably foreseeable. 40 C.F.R. 1508.8. A cumulative impact is “the incremental impact of the action when added to other past, present, and reasonably foreseeable

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future actions regardless of what agency ... or person undertakes such actions.” 40 C.F.R. 1508.7. For example, the Eleventh Circuit has determined that the future possible relocation of a nearby road to accommodate new navigational aids after an airport runway - has been extended is too speculative to be considered as a cumulative impact of the runway extension project, as is the building of a new passenger terminal.

City of Oxford, Ga. v. F.A.A.,

428 F.3d 1346 (11th Cir.2005).

Impacts may occur in any of a number of areas: ecological, aesthetic, historic

112

, cultural, economic, social, or health; previous impacts also must be taken into account, at least to a reasonable extent. The impacts most pertinent to an analysis of the Corps’ EIS in this ease are those on the municipal water supply (i.e., the Aquifer), the seepage losses to the Park and WCA, the destruction of wood stork habitat, and the increasing urbanization of Miami-Dade County.

a.

Aquifer/Wellfield contamination

Miami-Dade County’s wellfield protection zones were established in 1985 based upon the generalized survival time of bacteria in soils and groundwater, with appropriate setbacks for mining established to restrict excavations in order to limit the risk of contamination at the deeper levels from which the wells draw water. The basis for the protection zones was the nature of the Aquifer and its permeability.

[Limestone] makes up the Biscayne aquifer, which stores and filters the water supply for Miami-Dade County. Removal of the aquifer material by rock mining leaves the remaining aquifer more vulnerable to contamination from the newly created surface water bodies.... Implicit in the creation of well-field protection zones is the assumption that the hydrogeologic parameters do not vary in time. However, the very nature of rock mining, removing the geologic material, negates this assumption. There is a concern that existing and future rockmining excavations serve to expand the travel time contours beyond those used to define the existing wellfield protection area.... Unconfined and located at or near the land surface, the Biscayne Aquifer is made up mainly of layers of limestone and sand.... The generally high hydraulic conductivity and the many passages through the solution-riddled limestone offer little resistance to flow. The result is one of the most permeable aquifers in the world, which quickly responds to slight differences in the water table. As a result ... [t]he direction and velocity- of groundwater flow is strongly influenced by water levels in adjacent canals and other surface water bodies.

AR1176 (“Description and Analysis of Full-Scale Tracer Trials Conducted at the Northwest Wellfield, Miami-Dade County Florida,” DERM Water Supply Section, August 2000).

Not only the extraction of limestone but also the pits/lakes left behind after mining pose threats to the Aquifer. According to a report prepared by DERM (and published after the EIS):

The presence of lakes in the vicinity of the wellfield increases the risk to the drinking water supply by two routes. The miles of increasing shoreline provide a route for pathogens, as well as other pollutants, to enter the lakes either via stormwater runoff contaminated with pathogens, infected animals accessing the shorelines, or spills of contami

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nants near shorelines. A more direct route is via waterfowl flying in to use the lakes. Once in the lake, the pathogens/pollutants quickly disperse from the shoreline or middle of the lake. Depending on the specific gravity or other factors, the particular pathogen/pollutant will mix through the vertical extent of the lake and be drawn towards the wellfield. Water transport out of lakes and canals into the surrounding aquifer and towards the wellfield is primarily through the porous sides.... Modern rockmining techniques now can excavate up to 85-ft. depths, well into the various preferential flow zones of the drinking water wells (40-80 ft.). The preferential flow zones are more porous, providing less attenuation, particularly for pathogens of human health concern.

AR1175 at pp. 35-36 (“Northwest Well-field Watershed Protection Plan,” August 16, 2000). The Corps had sufficient information about these risks even before the above-quoted studies. Strong objections to the mining based upon the wellfield contamination issue began arriving, particularly from Miami-Dade County and its agencies, immediately after the Corps announced the preparation of the EIS in 1992. For example, in July 1992, DERM raised concerns about the effect of the Lake Belt Plan.on the Northwest Well-field’s classification as a ground water supply source. AR44.

113

DERM commented on the Issue Team’s final draft report in May 1997, criticizing its lack of attention to the fact that, further mining in the vicinity of the wellfield may itself impact the quality of water, and noting the potentially costly modifications that would be required for the current drinking water treatment process. AR485. In May 1999, DERM reported that it could not support the EIS until water quality and buffer issues were addressed fully, and that it could cost at least $235 million to add more filtration and disinfection to Northwest Wellfield “if groundwater becomes under direct influence of surface water as a result of mining”. AR605 at 85.

114

The County’s water treatment facilities are designed for treating groundwater, and they do so by filtration and disinfection. AR1175. The EIS reported that the excavation of limestone would convert a large portion of the Aquifer to “surface waters,” AR614 at 78, and that Miami-Dade County’s wellfield protection plan’s buffer zone “may be inadequate protection against [potentially deadly] surface water contaminants,” AR614 at 69-70. After reviewing the EIS, the County Manager at the time advised the Corps that:

Quarry lakes have the potential to contain substantially more disease-causing organisms than groundwater.... Mining rock from the Biseayne aquifer in

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the vicinity of the wellfield decreases the time it takes for a contaminant to travel from the quarry lake to the wells. Rockmining that may be authorized by the proposed Federal action will exacerbate the existing footprint of lakes in the vicinity of the wellfield. Therefore, the proposed Federal action has the potential to increase the risk of water quality contamination at the wellheads and result in the necessity for upgrading the water treatment plants to treat for disease-causing organisms at the cost of approximately $250,000,000.

AR654. Despite this caution, the Corps proceeded with the plan to approve the mining.

A review of the record reveals that the Corps approved mining in close proximity to the Northwest Wellfield (and its multiple wellheads from which drinking water is pumped daily) before the risk of contamination had been studied adequately or sufficient data had been collected and, thus, apparently did not fully consider the impacts (direct, indirect, or cumulative) of the mining activities, in violation of NEPA. According to the EIS, the proposed mining plan “may compromise the existing well-field protection program.” AR614 at 88. The EIS references a wellfield protection subcommittee that “has identified tasks that must be completed” to analyze properly the existing wellfield protections, and notes that if impacts to the wellfield are identified, “activities required to mitigate those impacts will be identified.” AR614 at 88.

115

“At this time, it has not been determined what is needed as a safe buffer to protect the water supply.... [T]his information might not be available until the completion of the Phase II Master Plan in December 2000.” AR614 at 70.

116

The only other information provided to the public on this topic before the permits were issued is contained in the Revised Public Notice, which states that additional restrictions had been proposed on mining near the Northwest Wellfield to allow “time for Miami-Dade County to complete a risk analysis and consider modifications” to its wellfield protection ordinance. AR737. The restrictions are not defined, although maps are included for each of the mining companies, purportedly showing the location of mining for the first three years under the proposed permits. Even if the Court were to consider the Revised Public Notice as being a supplemental part of the NEPA document, i.e., the EIS, it still falls short of properly advising the public or public officials of the risks of contamination and what can be done to eliminate those risks, particularly in light of post-EIS reports which specify the risks clearly.

The Corps has a duty, when evaluating “reasonably foreseeable significant adverse effects”

117

such as contamination of a municipal drinking water source, to provide all information that is “essential to a reasoned choice among alternatives” — or, if such information is unavailable — to summarize “existing credible scientific evi

*1315

dence” and the agency’s evaluatipn thereof. 40 C.F.R. 1502.22. The Corps should have recognized that it lacked essential information and, particularly in light of the anticipated completion of the County’s wellfield protection review, should have been more conservative as to this risk.

The most conservative protection for the wellfield is to eliminate all human activity around the unmined aquifer and lakes near the wellfield, except for the existing wellfield utility maintenance activities. This would entail purchase and transfer of private land into county ownership. This is a costly endeavor [estimates yet to be determined].... The most stringent protection will be applied to the inner lake protection zone. These lakes will be closed to public access and not be biologically enhanced in order to minimize pathogenic risk to surface and groundwater closest to the wellfield.... The proposed outer protection zone encompasses lakes to be used for passive recreation and biological enhancement.... Because past and future rockmining activities have caused this wellfield to be uniquely vulnerable to pathogenic risks, legislative actions should be pursued to ban animal and aquaculture operations, at a minimum, from the Northwest Wellfield’s inner lake zone.

AR1175 at 45-53.

The County and its agencies requested a public hearing and recommended denial of the permits, even for the reduced period; since no adequate program had yet been developed to protect the Northwest Well-field. AR791B. The EPA also requested that special conditions be imposed on the water quality monitoring and that it begin promptly, AR820.

118

The Corps took a positive step toward protecting the Aquifer by rejecting the mining industry’s attempt to avoid the wellfield restrictions

119

and imposing Special Condition 7 which requires monitoring of water quality and a review at the conclusion of the initial three years. (As noted above, this initial review already has been delayed by almost a year.) These efforts provide little assurance, however, because even if the probability of contamination is low (which it may or may not be), the consequences are great. The concern is not just as to the existing quarry pits, which already have caused groundwater seepage to occur (it is unclear from the EIS whether the Corps took this into account in determining the baseline from which to judge future impacts),

120

but also as to the ongoing mining

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and future pits. The Corps seems to be tolerant of mining even as it creeps closer to the wellfields/wellheads, unless or until there is a confirmed incidence of contamination. The future pits will be much larger and potentially closer to the wellheads, which “will further compromise the natural filtration processes that currently exist at the Northwest and West wellfields.” AR605 at 88.

The Corps ultimately avoided these water supply issues in the EIS (and ROD), claiming to defer to the County what should have been the Corps’ responsibility. A senior Corps staff member stated that “I do not think Corps needs to get in a position of deciding how much protection is warranted for the wellfield .... ” AR602. As further general evidence of the inadequacy of the Corps’ consideration of the wellfield contamination issue, the Court observes that the scientific or technical reports listed in the EIS references that are related to water, e.g., a 1978 study entitled “Investigations of ground-water conditions at borrow pits 7, 9, and 10, Miami-Dade County, Florida,” AR614 at 109, are nearly all more than twenty years old or relate to water bodies in other states, e.g., Michigan, Wisconsin. Even a non-scientist recognizes that this poses a problem in the ever-changing world of South Florida’s ecosystem.

In conclusion, the Court cannot determine that the Corps’ decision relied on the relevant factors. The Corps either should have waited for the County to complete its studies of wellfield protection, or the Corps should have done its own study. Also, the agency’s explanation for its failure to impose greater protections, i.e., that it was the County’s decision, runs counter to the clear evidence from the scientific reports in this record which expose the risk of contamination, and the Corps’ regulatory duties to protect the environment.

b.

Seepage losses to the Park and WCA

Another area in which the EIS lacks sufficient detail is in its hydrological analysis. According to the EIS, there is a “very high ground water seepage rate” that is causing injurious “declining water levels and hydroperiods” in the Everglades Protection Area and the Pennsuco wetlands, AR614 at 24, and seepage rates will increase with an increase in the acreage of mining, particularly if the new quarries are located near the western edge of the Lake Belt. AR614 at 77. In a total of less than two pages of analysis, the EIS concludes that “[although ... there are potentially significant impacts to large-scale increases in mining, it also seems time that there are readily available strategies to mitigate for these impacts.... It is also clear that time is available to complete a more definitive analysis and prepare the appropriate solutions.” AR614 at 77. This apparent reference to the incremental nature of the seepage impacts, i.e., they grow worse as more mining occurs, demonstrates that the cumulative impact of this mining will be significant and will adversely effect the adjacent wetlands (e.g., WCA-3B and the Pennsuco);

121

thus, it was error for the Corps to have paid so little attention to this issue.

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As early as March 1997, ENP advised the Corps that rock mining increases the seepage of needed water from the Park since mining increases the aquifer’s ability to convey water. AR439. FWS also noted that required restorative flooding levels in the WCAs and ENP will lead to increased water levels along their borders to the east, and that will require that seepage be controlled — a difficult task since mining aggravates the seepage problem. AR464. The National Audubon Society [NAS] already had provided its comments to the Corps regarding seepage issues.

The ‘Lake’ Belt is in one of the areas of greatest groundwater transmissivity in the entire Everglades region. Unfortunately there is a belief among some groups that stacking water in a quarry pit actually inhibits seepage. This misconception needs to be rectified. Simply put, water flows through water with less resistance than water flows through rock, even porous rock. NAS EERC [Everglades Ecosystem Restoration Campaign] has a grave concern that quarry pits may actually exacerbate seepage losses from the Everglades. This concern is heightened by the fact that millions of tax dollars are being spent on Everglades restoration, with the goal of improving water timing, delivery, quantity, and quality to the Everglades. Water loss from abandoned quarry pits in the ‘Lake’ Belt have the potential to negate much of the benefit gained through the expenditure of public dollars in the restoration effort.... Although structural seepage barriers have been proposed as the solution to seepage problems, NAS EERC contends that under many circumstances this may not be the best solution. In addition to the high costs of seepage barrier installation, there is a concern regarding the permanency of the barrier.... removal is for all practical purposes unrealistic.... A structural barrier [also] may actually cause draw down of the aquifer by impeding groundwater flow.

AR340.

Approximately one year before the Corps published the final EIS, the Governor’s office urged the Corps to explain the connection between the planned mining in the Lake Belt and the CERP/Restudy project components, as well as “how feasibility and seepage control studies will be used in the decision-making on [Lake Belt] permits .... The future healthy functioning of the Everglades ecological system and the future water supply of Miami-Dade County will be dependent upon the outcome of these issues.” AR605 at 73. The EIS was issued, nevertheless, without detailed recommendations for seepage control.

The EIS reports that there is “an increasing trend in the seepage lost ... to the east from WCA-3B .... The increased groundwater flow to the east resulting from the lakes appear [sic] to be the primary reason for the declining water levels and hydroperiod [in the Pensucco wetlands]. The water delivery to the [Northwest Wellfield] appears to decrease significantly ... with extensive lakes in the Lake Belt area.” AR614 (Appendix A). Shortly after the EIS was issued ENP, AR669, and EPA repeated their concerns as to seepage.

EPA has concerns about the impacts of future mining as it relates to seepage losses from Everglades National Park, Water Conservation Area-3B, and the Pennsuco Wetlands. Absent implementation of some significant contravening measures, this groundwater movement to the east will have even larger importance on the area’s wetlands.... There remains some significant uncertainties associated with the effectiveness of subsequent assessment/planning measures as well as in ascertaining whether even

*1318

known losses can be mitigated to acceptable levels.

AR 713, FAR41 (September 20, 2000). “Previous experience attests to the fact future developmental actions will make sustaining desired water quality standards difficult.” AR713.

122

The ROD ultimately imposed a Special Condition (Special Condition 3), which imposes on the permittee responsibility for avoidance measures or compensation for effects of changes in groundwater flows, but without specifying what that will require. “The actual plan will be submitted in a future year once, as discussed elsewhere in this memorandum, revised modeling and the design of the CERP are further along.” AR1028 at 74. This is far too vague to be in compliance with NEPA, and its open-endedness violates the requirement that permit conditions be “reasonably enforceable” — -found in 33 C.F.R. 325.4(a).

Seepage losses, particularly when they are certain to result from the proposed activity, are within the range of indirect effects required by NEPA to be studied in some detail.

123

To ignore this indirect effect “would be to [allow the Corps] to wear blinders that Congress has not chosen to impose.”

Riverside Irr. Dist. v. Andrews,

758 F.2d 508 , 512 (10th Cir.1985);

see also, National Wildlife Federation v. Coleman,

529 F.2d 359, 374 (5th Cir.1976) (proposed highway construction’s indirect impacts included residential and commercial development that would develop around the highway interchanges). Rather than providing an adequate evaluation, backed by “[accurate scientific analysis,” 40 C.F.R. 1500.1(b), the Corps postponed examination of the seepage question indefinitely and, essentially, left its NEPA obligation for a future time.

124

Delay of this critical analysis was an unacceptable deviation from the regulatory framework and, as such, requires remand.

c.

Wood stork habitat destruction

The EIS announced to the public that the proposed mining plan would have “no effect” on any Federally listed species, AR83, and that the project was fully coordinated with FWS, pursuant to “formal consultation” and was “in full compliance” with the ESA, AR614 at 101. This conclusion was reached without the benefit of either a Biological Assessment or a Biological Opinion, as discussed,

infra,

and misrepresents the nature of the Corps’ consultation with FWS at the time. The EIS discusses the wood stork in a total of approximately one-half of a page, AR614 at 49, 83, and fails to report that hundreds of acres of wood stork foraging habitat will be destroyed — a fact which should have been addressed in the NEPA document.

125

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The Corps simply determined that there will be no loss of habitat functions since wildlife will be displaced from mined lands to restored lands. AR956. The Court discusses this issue in more detail in the section, below, which evaluates the Corps’ compliance with the ESA, but briefly notes here that both NEPA and the ESA require that direct and indirect effects on protected species be considered.

Riverside Irr. Dist. v. Andrews,

758 F.2d 508 (10th Cir.1985) (Corps properly considered indirect effects of permit to construct a dam and reservoir, on whooping crane habitat downstream). The Corps’ failure to consider not only the direct effects (e.g., foraging habitat loss), but also the indirect effects (e.g., potential relocation of breeding rookeries, etc.) on the endangered wood stork renders the EIS fatally flawed.

126

Although prior to publication of the final EIS the Corps had obtained the FWS’ concurrence that the proposed mining project was “not likely to adversely effect any protected species”, the FWS announced on April 30, 2001, that it was not able to concur with the Corps’ recently announced conclusion

127

(which restated its earlier determination) without receiving supporting information. AR824. FWS observed that no biological evaluation was included in either Public Notice issued by ACOE, nor had the EIS provided a thorough analysis of the potential effects — including cumulative effects — on the species. AR824. Thus, FWS identified that NEPA had not been met and this Court agrees. The Corps failed to carry out its NEPA-im-posed duty to consider “the environmental impact” of the proposed action, 42 U.S.C. 4332(C)(1), 40 C.F.R. 1502.1, particularly by failing to include accurate scientific analysis regarding an endangered species known to be within the area of the proposed mining. 40 C.F.R. 1500.1(b).

d.

Increasing urbanization of Miami-Dade County

Indirect effects may include growth inducing effects, 40 C.F.R. 1508.8, particularly if that growth might not occur without the project’s influence. Impacts that “could likely occur at the site or in the vicinity whether or not the permit is issued should not be given much weight.” William L. Want, Law of Wetlands Regulation § 6:64, at 6-58 (2005). The EIS reports that “continued westward urban expansion of Miami” is a reasonably foreseeable action related to the proposed mining plan, AR614 at 89, and that it will result in “negative impacts,” AR614 at 90, but provides no analysis of the specific impacts other than to state that they will be “confined primarily to the immediate area.” AR614 at 90. (The EIS also suggests that mined rock from the Lake Belt will have a statewide value.) There is nothing in the EIS that supports a conclusion that westward urban expansion of Miami would occur whether or not the mining continues in the Lake Belt, nor is there anything to show that the adverse effects of the mining-related development will be “confined.”

128

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A cumulative impacts analysis requires that the present action be considered along with reasonably foreseeable future actions. Clearly the production of limestone-based concrete and cement will lead to greater urbanization anywhere in which the rock is used, and it was error for the EIS to ignore this element. “More strongly related indirect impacts should be given heavy consideration, while more ‘attenuated’ impacts should be considered, but less heavily.” Regulatory Guidance Letter (“RGL”) 88-11 (effective August 22, 1988, expired December 31, 1990),

reprinted in

William L. Want, Law of Wetlands Regulation (2005). To the extent that future specific uses of the mined rock in non-eontiguous areas, i.e., areas not adjacent to the Lake Belt, are unforeseeable, the Court finds that the Corps properly declined to conduct further study. This conclusion, however, does not relieve the Corps of considering the development, at a minimum, of the Lake Belt area itself which will occur as a direct result of the mining. For example, additional roads and infrastructure to support the mining will be developed, and there will be more truck and rail traffic to process the mined rock.

129

In a recent decision by another member of this Court, the Corps was ordered to consider the cumulative effects of future planned development even if such development had not yet been specifically proposed.

Florida Wildlife Federation v. U.S. Army Corps of Engineers,

401 F.Supp.2d 1298, 1326-1328 (S.D.Fla.2005). While the limestone mining in the present case is not as obvious a catalyst to development as the biotechnology research park at issue in Judge Middlebrooks’ case, it is nevertheless this Court’s conclusion that the future urbanization of the Lake Belt and at least the surrounding areas to the eastern side of the Lake Belt should have been considered by the Corps as a cumulative effect of the proposed mining plan.

130

The Court is troubled by the underlying theme of the Corps’ ROD which suggests that the permits at issue have been designed to be extended to the full fifty year mining plan. As is evident from the ROD, the Corps has not shelved the larger plan, but rather just delayed its implementation until the first period of mining is complete. Record evidence shows that the purpose of permitting mining in the Lake Belt is to serve a predicted need from Florida’s rapidly increasing population growth rate, and there is nothing to suggest that the growth rate will slow significantly. Thus, the Corps’ simple dismissal of the negative impacts of development, even as to just the Lake Belt and nearby area, violated

*1321

NEPA’s requirement that all indirect effects be addressed. 40 C.F.R. 1508.8.

2.

Consideration of adverse environmental effects which cannot be avoided if the proposal is implemented (i.e., the mitigation plan)

The Corps’ EIS identified various serious impacts, as noted above,

131

and thus the Corps was required, by NEPA, to first attempt to avoid these impacts and then to minimize whatever was unavoidable, and, finally, to mitigate for any unavoidable adverse effect.

Implicit in NEPA’s demand that an agency prepare a detailed statement on ‘any adverse environmental effects which cannot be avoided should the proposal be implemented,’ is an understanding that the EIS will discuss the extent to which adverse effects can be avoided. More generally, omission of a reasonably complete discussion of possible mitigation measures would undermine the ‘action-forcing’ function of NEPA.

Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 351-52 , 109 S.Ct. 1835 , 104 L.Ed.2d 351 (1989).

132

The Corps and EPA have entered into a Memorandum of Agreement (“MOA”) on Mitigation,

133

which adopted the sequencing approach that had been used by EPA: generally not considering mitigation as a factor in favor of issuing a permit but rather requiring it after the permit proposal is determined to meet permit criteria independently of mitigation.

134

The CEQ regulations direct that mitigation measures be discussed, 40 C.F.R. 1502.14(f), 1502.16(h), 1505.2(c), 1508.25(b)(3), but a mitigation plan need not be fully developed in the EIS, see

Robertson v. Methow Valley,

490 U.S. 332 , 109 S.Ct. 1835 , 104 L.Ed.2d 351 (1989). It is important, however, that the NEPA document contain all of the relevant information about the impacts of mining as well as the planned mitigation for those impacts. “Nothing should be left to good will among agencies or to personal recollections.” FAR97.

Mitigation is compensatory, and has been interpreted to require a replacement of the functional value of the wetlands, that is, there should be no net loss of wetland values. In February 1998, the Corps held a meeting of its branch chiefs to discuss mitigation, and decided that the basic assumption underlying the mitigation evaluation should be to restore the wetlands in context of the entire ecosystem. Neither an “as is today” or “as it should have been, i.e., pine flatwood wetland, pre-impact with invasive species” approach was selected, but rather a more tailored approach toward restoration based upon the specific function being performed by

*1322

the specific wetland at issue. AR545.

135

The analysis of wetland values in the present case was extensive;

136

however, the results were not applied in the Corps’ deci-sionmaking process. Many attempts were made to assess the value of the existing wetlands on which the miners wish to mine and construct supporting infrastructure, e.g. roads, work pads, etc. The Court already has addressed the importance of accounting for previous impacts on degraded wetlands, and the Corps’ limited evaluation of such impacts here, when determining the adverse effects of a proposed action. The Corps’ predictions of future impacts were similarly limited; for example, the Corps noted that the impact on groundwater seepage is “not immediate: it increases as the mining proceeds. The recommended plan is based on 50 years of mining so the total effect will not be seen until then.... The current discussions are to determine the appropriate mitigation measures to be incorporated into the master plan to be reported to the State Legislature by December 31, 2000.” AR614 at 99.

“The compensatory mitigation proposed for this project consists of the restoration or enhancement of degraded wetlands within the region and creation of littoral zones adjacent to the quarry lakes.” AR614 at 91. The EIS also briefly identifies specific mitigation measures to protect the wellfields, including the construction of a berm around the Lake Belt to prevent direct entry of surface water runoff and the prohibition of any future development of western areas as well as using land use regulations to prevent urban runoff from negatively impacting the Northwest Wellfield, AR614 at 82-83. Very little is discussed regarding the seepage impacts other than to say that water control structures might help, but that they would require more water in the overall system. Nowhere is it discussed that if the Aquifer becomes contaminated, such that its classification changes to groundwater under the influence of surface water, there will be an unpaid bill in the amount of $250,000,000 in order to treat the water.

Some of the strongest criticisms of the EIS were based upon the insufficiency of the mitigation plan.

137

Indeed, the admitted insufficiency of the mitigation

138

was the Corps’ impetus for reducing the permit

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period to ten years.

139

In October 1997, the Department of the Interior delivered comments to the Corps regarding the inadequacy of the mitigation plan.

The mitigation plan proposed by the Northwest Dade County Freshwater Lake Belt Committee during the Spring, 1997, legislative session of the Florida Legislature accounted for only direct wetland loss and concluded that the amount of mitigation necessary to neutralize rockmining impacts to wetlands was approximately half that required by other development activities. The justification for the reduced mitigation requirement was that the lakes left behind by rockmining were ecologically superior to other types of development and, therefore required less mitigation. We question the scientific basis for this assumption. Deep lakes are not part of the natural landscape of south Florida; they are also biologically unproductive and functionally-impaired. The mitigation ratio proposed, to date, does not and cannot compensate for the biological functions lost when shallow herbaceous marsh is replaced by deep lakes and violates the ‘no net wetland loss’ directive.

AR512.

140

The Plaintiffs refer to several objections raised as to the mitigation plan in the original fifty-year mining plan, as discussed in the EIS,

141

some of which remain valid even though the duration of mining was reduced to ten years. For example, several months after the Corps announced the reduction in the permit periods, FWS continued to question the adequacy of the proposed mitigation. AR948.

142

The Court will address the Corps’ discussion of mitigation in the EIS, with a view toward modifications, if any, that were made in light of the reduction of the permit period to ten years.

a. Mitigation Math

While a certain amount of flexibility in a mitigation plan is necessary and advisable,

143

there must be enough definition to allow for a meaningful review and evaluation of the plan to ensure that it would be successful. An agency must exercise particular care when the mitigation requires

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restoration of a large number of acres and the location of those restored acres is critical to, e.g., limiting groundwater seepage. While the use of a mitigation fee per ton positively correlates to the amount of impact, it also creates difficulties by shifting the focus to “mine now, mitigate later” since the mining will take place first, followed by payment of the fee, then followed by expenditures for mitigation.

i The ratio

The Court will only briefly address the question of the adequacy of the Corps’ mitigation ratio of 2.5:1, since a complete discussion of Habitat Units, lift, and other aspects of the Corps’ mitigation analysis are not necessary here. An interagency meeting was held in 1996 regarding wetland values and the calculation of mitigation, i.e., how many acres of restoration to require for each acre of mining impact. At that meeting the “Corps, DEP, SFWMD and DERM agreed to apply a 2.5:1 ratio within the entire basin for the acquisition, enhancement and perpetual maintenance of the wetlands in the Pennsuco. If the development ratios were applied to the same table, the resulting mitigation ratio would be 4.6:1.” Staff concluded that costs per acre for Pennsuco lands were $5,000, so the actual contribution required for each acre mined would be 2.5 times $5,000 = $12,500. FAR131. Corps staff admitted that the 2.5:1 ratio had “a fairly large fudge factor.” AR500. At some time in the next year, the Corps conducted a Wetlands Rapid Assessment Procedure (WRAP)

144

for the Pennsuco. The acreage ratios calculated pursuant to the WRAP were 3.65:1 (the Corps’ stated preference for individual permits), and the ratio calculated pursuant to a modified version of WRAP known as MWRAP (used for large scale projects such as mitigation banks

145

), was 5.93:1. AR618 at 245. “Based on the WRAP score that was done for the Lakebelt study ..., we would be requesting mitigation at a ratio of about 3.5 to 5.5 to 1. This is a big jump from where we were at before, but we always knew that we were undermitigating.” AR532 (November 14, 1997). In discussing other mitigation ratios in a nearby area, i.e., within the East Turnpike Basin, the Corps observed that it had “been progressing in increasing the amount of mitigation required targeting the Pennsuco area. We started at about 0.5:1 and most recently required 1.7:1.” AR532. The mitigation ratio was established as 2.5:1.

146

By the time the draft EIS was distributed, the agencies were using a cost estimate to acquire/restore one acre of Pennsuco wetlands as $6,142. AR614 at 98.

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DEP took a strong position with the mining industry that the 2.5:1

147

and $6,142 cost per acre were non-negotiable, which apparently contributed toward the miners’ walking out of a meeting with the Corps and others in March 1998.

148

The miners rejected the federal agencies’ proposal, which initially included an $.08 per ton fee, even though the “agency folks had worked real hard to come up with a balanced proposal.” AR562.

149

In light of the several higher ratios which were developed but ultimately discarded by the Corps, the Court has serious concerns as to whether the final determination of 2.5:1 is adequate to replace the lost value of the wetlands.

ii The fee

A key component of the mitigation plan is the collection of a mitigation fee, imposed by the State of Florida on all limestone from the Lake Belt area. The $.05 per ton, which increases each January 1, is based upon an overall mitigation ratio of 2.5 acres of restored wetlands for each one acre mined, assuming that the cost to acquire and restore one acre of Pennsuco wetlands is $6,142. AR614 at 98. The mitigation fee is collected by the State and held in a Mitigation Fund overseen by a multi-agency panel. Fla. Stat. § 373.41492 (2).

150

The fee is in addition to on-site hydrological mitigation, including the construction of shelves, which first were calculated as surrounding each one mile square lake.

151

The fee per ton established by the state legislature is recognized by the Corps as the administrative mechanism by which the miners are providing compensatory mitigation to satisfy Federal requirements.

152

The use of fees paid, e.g.,

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by a developer, to fund mitigation instead of providing it directly has grown over the past decade.

153

These “in-lieu-fee arrangements” were discussed in the 1995 federal agencies’ Guidance issued regarding the establishment and use of mitigation banks, and further guidance was provided in 2000 by a multi-agency panel. Such arrangements should be “self-sustaining” and “land acquisition and initial physical and biological improvements should be completed by the first full growing season following payment of the initial funds .... ” 65 FedReg. 66913 (November 7, 2000).

The Corps has noted that the fee per ton was based on a 50 year cash flow table estimating 300 acres mined for each of 50 years, and that the “mine-now-mitigate-later” approach was developed to keep the fee at no more than $.05 per ton. AR956. The length of the initial period of proposed mining made economic predictions difficult.

The agencies [sic] economists feel extremely uncomfortable making economic forecasts over a long period of time (i.e., 50 years). Therefore, they recommend that a ‘revisitation’ clause be included in the 404 permit so that representative and appropriate values for the economic variables can be determined and utilized. The purpose is to ensure that revenues from the industry match agency costs for the agreed upon mitigation plan. This is especially critical since the mitigation credits for the Pennsuco wetland will not be adequate to offset the total amount of the anticipated wetlands impacts from the proposed mining.

FAR120. FWS noted that “the landscape in South Florida will change drastically as a result of the Everglades Restoration” and that this limited the Corps’ ability to prepare a full mitigation plan for the entire fifty years originally envisioned. FAR2. As noted above, the initial assumed value for Pennsuco wetland acquisition and restoration costs was $6,142 per acre. This figure is increased slightly each year, and is based on acquisition costs of $3,071 per acre.

See

Am. Compl., Attachment 1. According to Plaintiffs, however, Pennsuco land prices were significantly higher than provided for by the permits and the ROD. “[For example,] Parcels in the Pennsuco owned by the Florida Rock mining company were valued at $10,000 per acre as part of an October 2003 ‘land swap.’ ” Further, the Corps’ settlement of the

Florida Rock

takings litigation resulted in compensation of $13,462 per acre. The Corps received comments after the EIS was issued urging the Corps to purchase as much land for mitigation as possible early — before prices increased. AR956.

The costs used to derive the fee included the costs of melaleuca removal. It appears that the costs of removing melaleuca were underestimated in the Corps’ adoption of the cost of $6,142 per acre of mitigation, i.e., to acquire and restore an acre of Pennsuco wetlands. “[R]emoval costs are really very low for the amount of work that needs to be done.” FAR124. “It is our belief that the proposed costs [at that time already updated to $6,142/aere, see AR126] attributed to management of the Pennsuco are extremely conservative and do not accurately reflect the actual effort necessary to manage Melaleuca successfully.” AR547.

154

The Corps has claimed

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that “[wjithout the melaleuca removal required by the [Lake Belt] plan, and funded by the mitigation fees these open areas [of wetlands in the Lake Belt] would be overrun by vegetation and unavailable to the storks for forage.” AR 1144 at 15 (Corps’ FAQs).

155

In light of the potential underestimating of these expenses, the Court has serious concerns regarding the adequacy of the fee with respect to the costs of acquiring wetlands for restoration.

b. Lakes/'Shelves

The EIS discusses mitigation, in part, as replacing lost wetland values by constructing edges, i.e., “littoral shelves,” around each of the mining pits.

156

It also had been argued that the lakes themselves were of some ecological value. However, the deep pits and their corresponding shelves, which will be constructed by the mining companies, have been the subject of much criticism.

The Florida Game and Fresh Water Fish Commission reported that fish production is low in the quarry pits. AR299. Natural lakes are absent from southern Florida, and only 3.2% of Florida’s natural lakes are greater than 1,000 acres, with few lakes exceeding 30 feet in depth. FAR132.

157

At a meeting in February 1998, an interagency group agreed that the functional capacity of a 100 foot wide littoral shelf was .53 on a scale of 0 to 1.0, due to wildlife utilization, ground cover, buffer, hydrology, and water quality functions. FAR124.

158

Clearly, a balanced and healthy agency review would result in a record that included a variety of data, not all of which must support the agency’s decision. Indeed, a record that tilted in only one direction would be suspect, nor does all of the data need to support the agency’s decision.

Environmental Coalition of Broward v. Myers,

831 F.2d 984 (11th Cir.1987). However, in this case the data is all against any value in the deep pits and limited, if any, value in the shelves, so the Corps’ decisions runs counter to the evidence.

The Corps’ conclusion that the remnant pits were of any benefit is not supported by the record, nor has it been demonstrated that lakes mitigate for any of the ad

*1328

verse effects discussed above — indeed, they exacerbate the groundwater seepage problem and the Aquifer contamination issue.

159

Similarly, the shelves are of dubi-table value; apparently recognizing this, the Corps has postponed enforcing any requirement that the shelves be constructed. In March 1995, the miners requested that mitigation requirements be deferred as to the construction of littoral shelves since it may be inefficient to construct littoral zones if those areas were likely to be mined later. AR219. The ROD provides that “construction of [demonstration 100-foot wide littoral marsh] will commence after the 3-year review,” while waiting for data from an existing marsh to determine what benefits these provide. AR1028 at 74. This represents an improper decision by the Corps to postpone the mitigation for the wetlands losses, and the agency’s own acknowledgment of the insufficiency of the mitigation plan — at least to the extent that it depended upon the shelves.

c.

Pennsuco

The EIS revealed that there was not enough land in the Pennsuco wetlands for the fifty year mining plan,

160

and that the area may not be the best choice for compensatory mitigation; despite this significant deficiency in its mitigation strategy, the Corps proceeded with the mining plan until it was forced to reduce the period to ten years to satisfy objectors. Although the Corps stated, in February 2002, that there would be enough area in the Pennsu-co to accommodate the first ten years of mining, AR990,

161

it appears that it will be insufficient to accommodate the mitigation needs of all of the mining activity allowed in these permits. A senior Corps staff member noted that the permitted acres actually will take sixteen years to mine, and that there will be insufficient acreage available for mitigation in the Pennsuco. AR978.

The EIS candidly states that the mitigation discussion is incomplete, but that it will be completed “during the permit application review process and finalized as part of the permit decision after this EIS document is finalized.” AR614 at 98. In July 2000, the Corps announced that its “current position is that the permits, if issued, will be conditioned for periodic reviews that would stop mining until additional compensatory mitigation sites are identified and added to the permits.” AR637. The special conditions, however, do not specify such a result. AR1028 at 75.

As early as 1997, ENP and FWS argued that the Pennsuco might not be the best location for the Lake Belt’s planned mitigation since that area may be needed for water storage or for a buffer as part of the Park’s restoration. AR512. After the EIS was issued, the FWS noted that the long-term hydrological viability of the Pennsuco was unknown, due to the possible effects of decreases in average annual

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surface water levels which may result from the mining. AR671.

The record before the Court suggests that the Corps did not comply with NEPA in preparing the EIS, nor in issuing the permits. While the reduction in terms of the permits did retroactively render the EIS discussion of mitigation more adequate, it is nevertheless the case that the Corps should have rigorously evaluated, with public participation, the actual mitigation plan to be adopted with the permits. The location of the additional property to be mitigated, beyond the Pennsuco, is unclear from the EIS, or even the ROD — as it appears that there may be insufficient land in the Pennsuco to accommodate even the 5,409 acres of mining to be conducted as a result of these “ten year” permits (13,522.5 acres would be needed). Having failed to identify, even generally, what other properties would be mitigated, the Corps violated NEPA by failing to provide the public with “sufficient information to ... generate meaningful comment.” 33 C.F.R. 325.3(a).

d. Transfer of property/Conservation easement

Another key aspect of the mitigation plan was that the mining companies were to sell their property within the Pennsuco to a governmental agency at appraised value, in order to protect it from further development.

162

AR614 at 98-99. However, only three of the companies (Florida Rock, Rinker and Tarmac) own any land in the Pennsuco. Shockingly, the planned transfer of the miners’ Pennsuco lands to the public is not binding. The EIS states that the sale “will be negotiated with individual companies who agree in principle to sell at appraised value.” AR614 at 99.

163

The Corps describes it as a “gentleman’s agreement” that miners will sell Pennsuco lands at market value to SFWMD. AR956.

The mitigation plan also envisioned conservation easements briefly in the EIS. AR614 at 99. The record reveals a fair amount of unsuccessful negotiation between the agency and the miners’ representatives on these issues, which ultimately resulted in the lack of any binding requirement on the permittees. Thus, although the adoption of the statutory fee per ton included an assumption that the conservation easements and agreements to sell would be given by the mining companies, AR701, the Corps’ decision on the easements was “[kicked] down the road to the three year review period when we may have a better feel for land-use footprint” AR707, AR759. FWS argued that the Corps should force the mining companies to commit to sell their Pennsuco lands at appraised values, particularly because no lands had been acquired for mitigation in Pennsuco even though $24 million had been collected from October 1, 1999, through December 31, 2000. AR824.

Despite earlier having proclaimed their intention to convey mined property to the public,

164

and their arguments that mining

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and its leftover lakes would serve the public interest by stopping further westward expansion of urban development, the mining companies slowly moved away from any commitments to convey their property rights. In November 1996, a Corps staff member reported that the miners wanted to keep their development rights in case the Urban Development Boundary for Miami-Dade County shifted to the west to include some of the Lake Belt. AR341. After the EIS was issued, the mining companies negotiated a statement that mined lands were to transfer to public ownership “where appropriate,” AR901, and noted that conservation easements were not required by any statute, but that the miners were “doing this voluntarily,” and that they were willing to work with the Corps as long as they were fairly compensated. AR909.

165

We cannot agree to an open ended conveyance, irrespective of ownership or other legal restrictions and therefore cannot agree to obtain releases or subordination agreements as a condition. In some cases, miners may just be leasing the mineral rights and may never acquire full title to create such an easement nor do we know if an easement would be OK with lenders or others. We also have a problem with extending the easement to upland areas in order to protect the littoral areas from indirect impacts. That would make the easement potentially ‘limitless’ and be impossible to implement as well as reaching far beyond the Corps CWA jurisdiction.

AR706. The Corps’ failure to adopt a sufficiently certain mitigation plan as to transfer of the mined property, particularly since the public was advised that the transfer of mined lands to the public was a component of the mining plan, violates the Corps’ duties under NEPA.

In summary, the Corps’ permits authorize the mining industry to eliminate thousands of acres of wetlands. While the miners repeatedly describe the area as “degraded” wetlands,

166

it is nevertheless the case that these wetlands, sitting directly above the Biscayne Aquifer, do serve a purpose. If the wetlands are going to be destroyed, then mitigation for that loss is required. The Corps’ mitigation plan identifies few specifics as to the serious adverse effects identified above, e.g., Aquifer contamination, groundwater seepage, destruction of wood stork habitat, increased urbanization. The major aspect of the mitigation plan is the payment of a fee per ton, and the use of those funds to acquire other wetlands for restoration. There is no discussion of a mitigation plan for treatment of the Aquifer if it becomes contaminated, nor is there a plan for compensating for groundwater seepage impacts. The derivation of the mitigation ratio is confusing, at best, and suggests that even when the Corps does implement a specific mitigation plan that it will be

*1331

insufficient as to this mining. For all of these reasons, the Court must conclude that the Corps’ permitting decision — particularly the EIS — does not satisfy NEPA, and the Corps is directed, on remand, to examine the mitigation needs in greater detail.

3.

Alternatives to the proposed action

The CEQ regulations describe the analysis of alternatives as “the heart of’ the EIS. 40 C.F.R. 1502.14. The result of this analysis should be a set of options which reveal a clear basis for choosing among alternatives.

Skinner

at 1541. “This discussion-of-alternatives requirement is intended to provide evidence that those charged with making the decision have actually considered other methods of attaining the desired goal, and to permit those removed from the decisionmaking process to evaluate and balance the factors on their own.”

Sierra Club v. Morton,

510 F.2d 813, 825 (5th Cir.1975);

Druid Hills Civic Ass’n v. Federal Highway Admin.,

772 F.2d 700, 712 (11th Cir.1985).

“NEPA imposes procedural requirements before decisions are made in order to ensure that those decisions take environmental consequences into' account.”

Wilderness Watch v. Mainella,

375 F.3d 1085, 1096 (11th Cir.2004) (reversing for NEPA violations in the agency’s decision to allow vehicle use through wilderness areas). The EIS analysis of alternatives must “[rjigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.F.R. 1502.14(a). Before determining what alternatives to study, an agency first must clearly define the project’s purpose.

a.

Defining the purpose

The EIS at issue contains no definitive statement of the project’s purpose and only references the creation of the Lake Belt Committee as the “need” for the project. AR614 at 11-12. In the Public Notice issued with the EIS in June 2000 the Corps identifies the proposed work as the: “Placement of fill related to excavation activities for the purpose of limestone quarrying.” AR623A. The Corps’ responses to critics, attached to the EIS as Appendix H, described the purpose as “to provide a limestone product from the Lak-ebelt area.”

167

AR614 at 909.

168

The Federal Defendants assert that “the purpose of the requested permits was to allow the applicants to exercise their mining rights.” Cross-Motion for Summary Judgment, Docket Entry # 32, at 33. As NEPA requires public disclosure of critical information, the Court will rely on the more general statement of purpose contained in the more readily accessible Public Notice. This also is consistent with NEPA’s requirement that the general goal of the project, rather than the particular applicant’s goal, be considered.

Van Abbema v. Fomell,

807 F.2d 633 (7th Cir.1986) (proper to analyze general goal, rather than particular applicant’s goal, “only marginally relevant” if at all, that applicant doesn’t own an alternative site).

b.

Analysis of “no action” alternative is required

Consideration of the “no action” alternative is mandatory “to facilitate reader comparison of the beneficial and adverse impacts of other alternatives to the applicant doing nothing.” 40 C.F.R. 6.203(b)(1), (c),

*1332

40 C.F.R. 1502.14(d). This “provides a benchmark, enabling decisionmakers to compare the magnitude of environmental effects of the action alternatives.”

Forty Most Asked Questions Concerning CEQ’s NEPA Regulations,

46 Fed.Reg. 18,026, 18,031 (March 23,1981).

169

The “no action” alternative was not rigorously explored and objectively evaluated, as required by 40 C.F.R. 1502.14. Instead, the EIS merely explains why that alternative is not being examined in any detail. AR614 at 71-72. The Corps concluded that if it took “no action” and instead maintained a permit-by-permit review of proposed mining in the area there “would be no development of a comprehensive landuse [sic] master plan” for the Lake Belt area, AR614 at 71. There is no basis for this conclusion, however, since the development of a master plan is not the Corps’ responsibility, but rather rests with local, or perhaps state, government. The Federal Defendants admit this in their brief. “The decision to allow mining in the Lakebelt region is a land use decision made by the State of Florida and local governments. It is not the role of the Corps to question that determination, but rather to determine whether public interest in mining as determined by those entities warrants the impact to waters of the United States.” Federal Defendants’ Cross-Motion for Summary Judgment, at 363.

c.

Corps’ analysis of three alternatives

NEPA requires an analysis of alternatives and the presentation of that analysis in such a manner that a decisionmaker can choose wisely among the options presented to her. The Corps must “[r]igorously explore and objectively evaluate all reasonable alternatives [but then just] briefly discuss [those alternatives eliminated from detailed study].” 40 C.F.R. 1502.14(a). The EIS contains a discussion of only four alternatives:

1) no action (such that the Corps will continue evaluating permits on a case-by-case basis),

2) no action and revocation of existing permits,

3) curtail future mining, and

4) comprehensive mining plan.

The first three of these were “briefly discuss[ed]” and then eliminated. No other alternatives were identified in the EIS, so presumably no others were studied. 40 C.F.R. 1502.14(a). The ROD discusses the same alternatives. AR1028 at 36-40.

170

i. The “no action” altemative(s)

The Corps concluded that taking “no action” and continuing to review permits on an individual basis would not be wise because of the “strong consensus ... that the current wetland mitigation requirements do not adequately compensate for the resulting wetland impacts.” AR614 at

*1333

71. This statement defies logic. The continuation of case-by-case review does not imply that wetland mitigation requirements cannot be improved.

The Corps also determined that taking no action and revoking the mining permits would cause “economic hardship” on the mining industry “as well as increased cost of construction goods and services to the people of Florida,” AR614 at 71, and, as such, was “unreasonably expensive to the applicant” and therefore not practicable.

171

This statement is similarly senseless, and fails to take into account the principle stated within the same paragraph of the EIS, i.e., that “[t]he determination of what constitutes an unreasonable expense should generally consider whether the projected cost is substantially greater than the costs normally associated with the particular type of project or would force an applicant to accept a level of business risk that would be unreasonable.” AR614 at 71. There is no support in the record for a determination that “revoking” the current permits (many of which were expiring) and denying any future permits would be “unreasonably expensive to the applicant”— for the simple fact that there is no evidence at all as to the mining companies’ financial situations

172

, nor whether, e.g., they own property in other locations that could be mined while the Lake Belt plan is subjected to further study, or whether they anticipated denial of permits as part of their business plan.

173

The “costs normally associated with” limestone mining are not specified in the record and, consequently, there is no basis for the Corps’ conclusion that the costs of stopping mining would be “substantially greater” than the usual costs of limestone mining.

174

The ROD contains similarly illogical statements. For example, the Corps notes that the alternative to facing the “costly process” of further takings challenges brought by the mining companies, is “public acquisition of the lands.” AR1028 at 37. While that statement is true, the Corps then makes a giant leap to conclude that public acquisition of the unmined lands would require all of the following: purchase of 40 square miles of land owned by the mining industry, removal of the roads, railways, processing plants, and other infrastructure, and removal of the drainage works — which would require purchase of the remaining 31 square miles of

*1334

privately owned and 16.5 square miles of publicly owned lands. AR1028 at 37. Having determined that the “no action” alternative would lead either to future takings challenge, or to purchase of the entire universe of the Lake Belt, the Corps handily rejected the “no action” alternative. The Corps did not even address the benefits of denying future permits for mining in the area. Having jumped from one extreme (total restoration at great financial cost), to the other (full mining and continued degradation), the Court failed to consider a middle ground, e.g., simply stopping the mining first, and then proceeding step by step to restore the area when funding is available.

175

Because of these (illogical) determinations, both of the “no action” alternatives quickly were dismissed without the Corps conducting the evaluation required by NEPA. 40 C.F.R. 6.203(b)(1), (c), 40 C.F.R. 1502.14(d).

ii. “curtail future mining”

According to the Corps, mining the 5,000 acres in Miami-Dade subject to existing permits (i.e., without any new acreage being approved) would last only fifteen years, at which time rock would have to be brought in from elsewhere. Since that imported rock now only constitutes 1% of the State’s annual consumption of rock, “it would take time to increase outside sources of rock imports to equal future demands. Florida must, therefore, continue to supply the majority of the State’s crushed rock needs for years to come.” AR614 at 71-72. The fact that “Florida” must continue to supply its own crushed rock needs does not translate to a requirement that mining must be permitted to continue in the Lake Belt. The Federal Defendants acknowledge that the Lake Belt area supplies “over half’ the crushed stone for the entire state, Reply brief, Docket Entry # 42, at 7, so apparently as much as 40% or more of the state’s rock needs are supplied by other locations in Florida (1% foreign origin, “over half’ from Lake Belt). The use of “therefore” does not render an otherwise unsupported conclusory statement meaningful. It is impossible for the Corps to be protected by the shield of deferential review when its “decision is so implausible that it cannot be the result of differing viewpoints or the result of agency expertise.”

Sierra Club

at 1216. The “curtail future mining” alternative was eliminated not based upon facts at the time of the Corps’ analysis, but rather because it might be infeasible at some point toward the end of the next fifteen years. This reveals that the permits as issued, which allow mining in areas not previously permitted, are not the environmentally preferable alternative, for the “curtail future mining” alternative would have permitted approximately the same amount of acres to be mined, i.e., a similar benefit to the mining companies, but within previously approved areas and, presumably, with less adverse effects and for a shorter period time. Thus, the Corps’ decision was not in compliance with NEPA.

176

Hi. Comprehensive mining

plan

177

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Both DERM and SFWMD complained to the Corps in 1999 that the comprehensive mining plan alternative in the draft EIS did not accurately represent the work of the Lake Belt Issue Advisory Team and the result of its study of several alternatives. AR606. Specifically, the timing of mining, particularly near the wellfield, in the Team’s plan differed from that described in the comprehensive mining plan, and the Team had not reached a consensus as to mining in the area south of Tamiami Trail, i.e., closest to ENP.

178

The Corps proceeded with the alternatives described above' — the analysis of which, in the EIS and ROD, was exceedingly brief. The Corps’ preparation of the NEPA documents, including its early preparation of permit templates even before the EIS was published, reflected the Corps’ intention that the preferable alternative was and would be the “comprehensive mining plan.”

d.

The “bridging permits” mask the Corps’ intention to permit mining for fifty years

As noted at the beginning of this opinion, Plaintiffs allege that these really are fifty year permits, perhaps clothed as 10 year (or 14 year or 16 year) permits, but nevertheless designed to lead to full mining of the Lake Belt area. The Court agrees, and finds that this surreptitious approach to permitting does harm to the principles of NEPA, and the APA, as well. Other courts have noted how environmental analyses can become distorted when the initial phases of a project already have been approved.

See, e.g., Davis v. Mineta,

302 F.3d 1104 (10th Cir.2002) (enjoining first phase of a project because, although the harm would arise from later phases, of risk that the NEPA alternatives analysis would be skewed toward completion of the project if any construction was allowed before a complete environmental analysis was done). As the now Justice Breyer observed while on the Court of Appeals for the First Circuit:

The harm at stake in a NEPA violation is a harm to the environment, not merely to a legalistic “procedure[.j” The way that harm arises may well have to do with the psychology of decisionmakers, and perhaps a more deeply rooted human psychological instinct not to tear down projects once they are built. But the risk implied by a violation of NEPA is that real environmental harm will occur through inadequate foresight and deliberation. The difficulty of stopping a bureaucratic steam roller, once started, still seems to us ... a perfectly proper factor for a district court to take into account in assessing that risk[.]

Sierra Club v. Marsh,

872 F.2d 497, 503 (1st Cir.1989).

Florida Wildlife Federation v. United States Army Corps of Eng’rs,

404 F.Supp.2d 1352, 1362 (S.D.Fla. 2005) (“[I]t cannot be denied that allowing substantial development of a project creates momentum that typically cannot be reversed.”). It would be error for this Court to review this case without addressing the question of the fifty year plan.

179

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The Corps itself has declared that the EIS and the originally envisioned permits were designed to facilitate the fifty year planning window for mining activities, even though the permits presently were being issued for a ten year period. AR682.

180

The Corps acknowledged that it rushed the publication of the EIS in June 2000, but that it did so in order to disclose information at the time that permit extension decisions were being made. In June 2001, the Corps noted that the key to the renewal of the ten year permits will be the monitoring plan used in year nine. AR836. The inclusion of the three year review point in these “bridging permits” apparently was designed to give the Corps a means by which to respond to the extensive objections that had been raised regarding the initial mitigation plans, and to determine what Miami-Dade County would do regarding potential contamination of its primary source of drinking water by mining activities. For example, the EPA had raised' “serious wetland and drinking water ...” concerns, but supported the concept of a “bridging permit” to deal with the problem of the expiring permits. AR705A.

If these permits had been issued as fifty year permits, the Court would have invalidated the permits and directed the Corps to deny the permits (rather than simply remanding the case for further study). Such a conclusion would have been required under NEPA (and the CWA) because of the significant adverse effects and the Corps’ insufficient mitigation and other analyses.

4.

Relationship between short-term uses of environment and maintenance and enhancement of long-term productivity

The Court now turns to an evaluation of the adequacy of the Corps’ balancing under NEPA of the applicant’s need to use the environment against the enhancement of the environment’s long-term productivity. Factors relevant to the Corps’ consideration included conservation, economics, aesthetics, general environmental concerns, wetlands, historic and cultural resources, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply, water quality,, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership. AR1028 at 76-83. The Corps’ weighing of the relevant factors need not result in a specific dollar and cents comparison

181

, particularly in a case such as the present which involves extensive environmental destruction in order to obtain natural resource materials for sale by private corporations.

The decisionmaker’s task nevertheless remains the same. It is not to total up dollars and cents in a sort of profit-loss ledger, but rather to consider the previously unconsidered by giving weight and

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consideration to the ecological costs to future generations in deciding whether present economic benefits indicate that the depletion of irreplaceable natural resources should proceed in the manner suggested, or at all.

Sierra Club v. Morton,

510 F.2d 813, 827 (5th Cir.1975). The scope of the Corps’ evaluation of each of the relevant factors must be similar. “[T]he record shows that the Corps’ analysis, while narrowing the review of the proposed project’s impacts to the 535-acre project, improperly extended the scope of both its benefits and alternatives analysis to the entire Research Park Project.”

Florida Wildlife Federation v. U.S. Army Corps of Engineers,

401 F.Supp.2d 1298, 1331 (S.D.Fla.2005) (failure to consider impacts of planned road extension related to development of Palm Beach County Biotechnology Research Park was arbitrary and capricious when record revealed reasonably foreseeable indirect and cumulative effects of the proposed project, and scope of alternatives and benefits analysis differed from scope of impact analysis).

The short term uses in this case are the mining, which results in the permanent removal of the wetlands.

182

“The most significant impact of Lake Belt mining is the production of goods, primarily building materials, for a growing Florida,” AR1028 at 77

183

; thus, the long-term productivity is primarily as to an economic factor, e.g., production of limestone which supports economic growth, although the fees collected will be used to acquire property and fund restoration of the greater Everglades for the public benefit. The Corps’ analysis focused primarily on the economic benefits of rockmining, using rapid development and growth in Florida to justify the expansion of mining, for profit, in the Lake Belt wetlands. “The adverse effect of urban sprawl in the local area and region should be investigated, for if rockmining is credited for supporting growth, it follows that rockmining should also be criticized for the adverse effects of growth, including the loss of open space, agricultural lands, and habitat.” AR631/FAR85. It must be remembered that, at least for the purposes of the Corps’ NEPA analysis, environmental impacts are more important than economic ones, economic and social impacts have lesser importance than purely environmental or ecological impacts. At least one court has reversed a permit denial based upon the Corps’ improper focus on the potential harm to the economy of a neighboring area if a mall was to be constructed.

Mall Properties, Inc. v. Marsh,

672 F.Supp. 561 (D.Mass.1987),

appeal dismissed

at 841 F.2d 440 (1st Cir.1988) (Corps should have focused its consideration on physical impacts).

184

The court’s decision in

Mall Properties

seems to suggest that the Corps’ economic inquiry should be confined to the effects related to alterations of the physical environment. “These effects would typically be with respect to navigation or fisheries.”

Id.

An overemphasis on economic factors, particu

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larly when they have not been tested rigorously, can derail the Corps’ analysis.

South Louisiana Environmental Council, Inc. v. Sand,

629 F.2d 1005 (5th Cir.1980);

see also Hughes River Watershed Conservancy v. Glickman,

81 F.3d 437 (4th Cir. 1996) (inflated estimate of recreation benefits versus adverse environmental effects).

The socio-economic analysis in this EIS is scant, and the single report on this factor appended to the EIS relies on data derived only from the mining industry (apparently from the specific permit applicants themselves).

185

Misleading information about economic impacts can defeat the “hard look” function of an EIS.

South Louisiana Environmental Council v. Sand,

629 F.2d 1005 (5th Cir.1980);

see also Hughes River Watershed Conservancy v. Glickman,

81 F.3d 437 (4th Cir.1996) (inflated estimate of recreation benefits weighed against adverse environmental effects). For economic impact, the Corps’ scope of analysis included the “county and southeast Florida region,” AR1028 at 8. The Corps’ asserted that the need for the project was “demonstrated by the strong support of the state government and the local community for the jobs that will be created and the materials that will be made available for infrastructure improvements.” AR1028 at 83. While the role of a state government and its support for a project may be somewhat relevant, it is not one of the factors specifically identified by Congress.

Hoosier Environmental Council, Inc. v. U.S. Army Corps of Engineers,

105 F.Supp.2d 953 (S.D.Ind.2000) (Corps may give deference to decisions of a state agency regarding the purpose of a project sponsored by. that agency);

Friends of the Earth, Inc. v. U.S. Army Corps of Engineers,

109 F.Supp.2d 30 (D.D.C.2000) (state court’s analysis irrelevant). One of the mining consultants argued that the Conference Report from the 1996 WRDA, 104th Congress, 2nd Session, Report 104-843 (September 25, 1996), directed the Corps to approve mining in the Lake Belt. AR474 at 5. “[T]he Legislature of the State of Florida has recognized the importance of the Lake Belt Area of Dade County for the provision of a long-term domestic supply of aggregates, cement, and road base material. The Secretary is directed to take into consideration the Lake Belt and its objectives, as defined by the State legislature, during development of the Comprehensive Plan [for Everglades Restoration].” AR605 at 195. This quote clearly refers to the overall CERP, and not particularly to the permitting decision before the Corps (and the Court).

While a permit applicant is permitted to pay for studies to provide information for an EIS, there are some restrictions on their role.

See

Regulatory Guidance Letter No. 87-5 (May 28, 1987) “Environmental Impact Statement (EIS) Costs that Can Be Paid by the Applicant,

reprinted in

Margaret N. Strand, Wetlands Desk-book (2d ed.1997).” Whenever possible, the Corps should seek independent verification of an applicant’s information.

Where the major federal action under consideration, once authorized, cannot be modified or changed, it may be essential to obtain such information as is available, speculative or not, for whatever it may be worth in deciding whether to make the crystallized commitment .... But where a multistage project can be modified or changed in the future to minimize or eliminate environmental hazards disclosed as the result of information that will not become available until the future, and the Government reserves the power to make such a mod

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ification or change after the information is available and incorporated in a further EIS, it cannot be said that deferment violates the ‘rule of reason.’ Indeed, in considering a project of such flexibility, it might be both unwise and unfair not to postpone the decision regarding the next stage until more accurate data is at hand.

Suffolk County v. Secretary of the Interior,

562 F.2d 1368, 1378 (2d Cir.1977). “Courts allow the use of information by the private applicant, but require that the Corps exercise overall responsibility, and where the information is credibly challenged as inaccurate, impose a duty to investigate independently. Also, regulations of the Council on Environmental Quality express the intent of avoiding the use of a contractor with a conflict of interest.” William L. Want, Law of Wetlands Regulation § 6:60, at 6-54 (2005),

Van Abbema v. Fomell,

807 F.2d 633, 642 (7th Cir.1986);

Sierra Club v. Sigler,

695 F.2d 957 (5th Cir.1983),

Sierra Club v. Marsh,

701 F.Supp. 886, 912 (D.Me.1988).

As to this weighing exercise, the pressure from the permit applicants, including the specter of the takings litigation

186

, was damaging. Moreover, the reliance by the Corps upon applicant-supplied reports (e.g., Biological Assessment, Analysis of Practicable Alternatives, etc.) must be subjected to special scrutiny.

187

Paul Larsen’s December 1999 report, Appendix I to the EIS, is cited extensively,

infra,

regarding its analysis of practicable alternatives.

188

Indeed, the Corps based its entire CWA alternatives analysis on that report.

The industry, or at least these mining companies, probably will suffer significant losses in the event that these permits are revoked, nevertheless, these losses cannot be justification for the possible, even probable, deleterious environmental effects caused by this mining.

189

“ ‘[W]e will engage in a “narrowly focused” review of the economic assumptions underlying a project

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to determine whether the economic assumptions “were so distorted as to impair fair consideration” of the project’s adverse environmental effects.’ ”

Mooreforce, Inc.v. U.S. Dept. of Transp.,

243 F.Supp.2d 425, 437 (M.D.N.C.2003)

quoting Hughes River Watershed Conservancy v. Glickman,

81 F.3d 437, 446 (4th Cir.1996),

quoting South Louisiana Environmental Council v. Sand,

629 F.2d 1005, 1011 (5th Cir.1980).

The Court previously described the takings litigation involving one of the mining companies, which was occurring while these permit applications were being reviewed. The record suggests that the consideration of the

Florida Rock

case did influence the Corps’ weighing, as acknowledged by the Corps, AR1028 at 37,

190

and the Court has determined that this influence resulted in a failure to consider important aspects of the problem and tempted the Corps to rely on factors other than those that Congress intended the agency to consider.

Sierra Club

at 1216. The Court has studied the

Florida Rock

line of cases, and finds that they rest on a thin reed. Unfortunately, that thin reed created a costly specter of expensive land acquisition or takings litigation which may have spurred on the destruction of hundreds of • acres of wetlands unnecessarily. The Federal Circuit itself noted that the location of the Florida Rock property at issue in the takings case lended some plausibility to the Government’s suggestion that willing buyers existed for the property despite the regulations, and that the company had not demonstrated a taking of all economic uses of its property. It should not be presumed that the mining companies would succeed in any future takings challenges, particularly as to any property acquired after passage of the CWA.

191

More pertinently,

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even the appellate panel in the

Florida Rock

decision recognized that South Florida’s history of real estate speculation and rapidly expanding population-driven development might indicate a value in the acres that could not, at the time, be mined. “South Florida has long enjoyed renown as not only a place where the gullible are fleeced, but also one where far-seeing investors realize fortunes.”

Florida Rock v. United States,

791 F.2d at 902 (1986).

192

While the scope of this Court’s review is narrow, it is not without dimension.

Olen-house v. Commodity Credit Corp.,

42 F.3d 1560, 1576 (10th Cir.1994). “[T]he public will need to review the total costs (ecological, economic, and social) of its current usages of rock products. Will it be willing to accept the accelerating costs or will it look for alternatives, alternative materials for road or building construction and/or more extensive recycling? Ultimately, the public’s need for the rock product will have to change and private industry will react, but it is not the role of the Corps to dictate to the public or to manage the State’s economy.” AR1028 at 39. As the Court cannot say that the Corps’ balancing was conducted according to NEPA, particularly in light of the Corps’ reliance on reports that should have been subjected to independent verification, remand is necessary. 5.

Any irreversible and irretrievable commitments of resources which would be involved in the proposed action if implemented

The Corps must “ 'ensure[ ] that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.’”

Sierra Club,

at 1214, quoting

Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 349 , 109 S.Ct. 1835 , 104 L.Ed.2d 351 (1989). It is undisputed that mining has serious adverse effects. Clearly, once the wetlands have been eliminated by mining, they are irretrievable. Although the mining companies will be constructing shelves around the lake to function as artificial wetlands,

193

the ecological value of the shelves and the quarry pits is low, as they differ significantly from any natural part of the Everglades landscape. Early in the process of analyzing the Lake Belt Plan, in Novem

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ber 1995, the Florida Game and Fresh Water Fish Commission noted that the deep lakes don’t function the same as shallow wetland systems, and that the destruc

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