Center For Biological Diversity et al v. U.S. Army Corps of Engineers et al

Middle District of Florida, flmd-8:2017-cv-00618

MOTION for summary judgment and Supporting Memorandum of Law by Center for Biological Diversity, Manasota-88, Inc., People for Protecting Peace River, Suncoast Waterkeeper.

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3 PageID 849 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division)) CENTER FOR BIOLOGICAL DIVERSITY;) MANASOTA-88, INC; PEOPLE FOR) PROTECTING PEACE RIVER; and) SUNCOAST WATERKEEPER,)) Plaintiffs,)) CASE NO. 8:17-cv-618-SDM-MAP v.)) U.S. ARMY CORPS OF ENGINEERS;) ORAL ARGUMENT REQUESTED LT. GEN. TODD T. SEMONITE, in his) official capacity as Commanding General and) Chief of Engineers of the U.S. Army Corps of) Engineers; COL. JASON A. KIRK, in his) official capacity as District Commander of the) U.S. Army Corps of Engineers; U.S.) DEPARTMENT OF THE INTERIOR;) RYAN ZINKE, in his official capacity as) Secretary of the U.S. Department of Interior;) U.S. FISH AND WILDLIFE SERVICE; and) JIM KURTH, in his official capacity as) Acting Director of U.S. Fish and Wildlife) Service,)) Defendants.) _____________________________________ PLAINTIFFS' DISPOSITIVE MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF LAW 3 PageID 850 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................ iii TABLE OF ACRONYMS AND ABBREVIATIONS COMMONLY USED IN DOCUMENTS RELATED TO THIS CASE ..................................................................... viii MOTION FOR SUMMARY JUDGMENT............................................................................1 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION ...........................2 STANDARD AND SCOPE OF REVIEW .............................................................................2 ARGUMENT ..........................................................................................................................3 I. Plaintiffs have standing to bring the claims in the Amended Complaint ...................4 II. The Corps is violating the National Environmental Policy Act .................................5 A. The Corps unlawfully deviated from the NEPA process of agency decisionmaking .....................................................................................................6 B. The Corps must issue a site-specific environmental impact statement for the SPE Mine because it will have significant impacts on the human environment ..........................................................................................................8 C. The Corps unlawfully failed to analyze the reasonably foreseeable and significant indirect and cumulative impacts from phosphogypsum stacks .........11 D. The Corps' purpose and need statement for SPE Mine is unlawfully narrow, disqualifying reasonable alternatives.....................................................14 III. The Corps is violating the Clean Water Act .............................................................16 A. The Corps fails to rebut the presumption that practicable alternatives with fewer impacts exist .....................................................................................16 B. The Corps misapplies the Public Interest Review, predetermining the results ............................................................................................................18 C. The Corps fails to comply with the Compensatory Mitigation Rule ..................19 D. The Corps deprived the public of a hearing on the SPE Mine............................22 IV. The Corps and Service are violating the Endangered Species Act ...........................23 i 3 PageID 851 A. The Corps and Service failed to consider the impacts of the mines planned for Bone Valley ..................................................................................24 B. The Service's ITS unlawfully fails to specify take and provide a meaningful trigger to reinitiate consultation ....................................................27 C. The Corps and Service unlawfully failed to reinitiate consultation .................29 D. The Corps' reliance on the BO violates the ESA and APA .............................30 CONCLUSION ..................................................................................................................30 ii 3 PageID 852 TABLE OF AUTHORITIES CASES Am. Canoe v. White, 277 F. Supp. 2d 1244 (N.D. Ala. 2003) ................................................................................ 2 Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87 (1983) ...............................................................................................................15 Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 833 F.3d 1274 (11th Cir. 2016) ..............................................................................................6 Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 781 F.3d 1271 (11th Cir. 2015) ............................................................................................. 4 Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) .............................................................................................................. 4 Citizens for Smart Growth v. Peters, 716 F. Supp. 2d 1215 (S.D. Fla. 2010)................................................................................ 14 Coastal Conservation Ass'n v. Locke, No. 2:09-cv-641-FtM-29SPC, 2011 U.S. Dist. LEXIS 111814 (M.D. Fla. Aug. 16, 2011).................................................. 6 Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) ............................................................................................. 24 Defs. of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001) .................................................................................... 25 Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242 (11th Cir. 2012) ............................................................................................. 6 Defs. of Wildlife v. Salazar, 877 F. Supp. 2d 1271 (M.D. Fla. 2012) ................................................................................ 6 Defs. of Wildlife v. U.S. Dep't of the Navy, 733 F.3d 1106 (11th Cir. 2013) ............................................................................................. 6 iii 3 PageID 853 Deltona Corp. v. Alexander, 504 F. Supp. 1280 (M.D. Fla. 1981) ................................................................................... 18 Fla. Clean Water Network v. Grosskruger, 587 F. Supp. 2d 1236 (M.D. Fla. 2008) ........................................................................ 14, 15 Fla. Key Deer v. Brown, 364 F. Supp. 2d 1345, 1355-56 (S.D. Fla. 2005) .......................................................... 26, 27 Fla. Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008) ............................................................................... 24, 25, 30 Fla. Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 401 F. Supp. 2d 1298 (S.D. Fla. 2005).............................................................. 13, 14, 15, 19 Fund for Animals v. Rice, 85 F.3d 535 (11th Cir. 1996) ...................................................................................... 2, 20-21 Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004) ........................................................................................... 16 Haw. Longline Ass'n v. Nat'l Marine Fisheries Serv., 281 F. Supp. 2d 1 (D.D.C. 2003) ........................................................................................ 30 Hill v. Boy, 144 F.3d 1446 (11th Cir. 1998) ......................................................................................... 6, 9 Idaho Conservation League v. U.S. Forest Serv., No. 1:11-cv-00341-EJL, 2012 U.S. Dist. LEXIS 124659 (D. Idaho Aug. 29, 2012) ................................................. 10 Kleppe v. Sierra Club, 427 U.S. 390 (1976) .............................................................................................................. 6 Miccosukee Tribe of Indians v. United States, 566 F.3d 1257 (11th Cir. 2009) ................................................................................ 23, 27-28 Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .......................................................................................................... 3, 14 iv 3 PageID 854 Nat. Res. Def. Council v. Nat'l Park Serv., No. 2:16-cv-585-FtM-99CM, 2017 U.S. Dist. LEXIS 61428 (M.D. Fla. Apr. 24, 2017) .................................................. 25 Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 (9th Cir. 2005) ............................................................................................... 10 Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469 (D.D.C. 2014) ...................................................................................... 29 Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir. 2006) ............................................................................................. 4 Pac. Coast Fed'n of Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 265 F.3d 1028 (9th Cir. 2001) ............................................................................................. 26 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .............................................................................................................. 5 S. Fork Band Council of W. Shoshone v. U.S. Dep't of Interior, 588 F.3d 718 (9th Cir. 2009) ............................................................................................... 10 Sierra Club v. Flowers, 526 F.3d 1353 (11th Cir. 2008) ......................................................................................... 6, 8 Sierra Club v. Marin, 168 F.3d 1 (11th Cir. 1999) ................................................................................................... 8 Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209 (11th Cir. 2002) ......................................................................................... 2, 3 Sierra Club v. Van Antwerp, 362 Fed. Appx. 100 (11th Cir. 2010) ............................................................................ 16, 18 Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254 (S.D. Fla. 2009)................................................................ 8, 14, 17, 18 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ............................................................................................................ 23 v 3 PageID 855 Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002) ..................................................................................... 17, 18 Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) ............................................................................................... 28 STATUTES Administrative Procedure Act 5 U.S.C. § 704 ........................................................................................................................... 2 5 U.S.C. § 706(2)(A)................................................................................................................. 2 Endangered Species Act 16 U.S.C. § 1532(19) ........................................................................................................ 23, 27 16 U.S.C. § 1536(a)(2) ................................................................................................ 23, 24, 27 16 U.S.C. § 1536(b) ................................................................................................................ 23 16 U.S.C. § 1536(b)(4)(C)(i) ............................................................................................ 23, 28 Clean Water Act 33 U.S.C. § 1251 ..................................................................................................................... 16 33 U.S.C. § 1251(e) ................................................................................................................ 22 33 U.S.C. § 1311(a) ................................................................................................................ 16 33 U.S.C. § 1344(a) ................................................................................................................ 22 National Environmental Policy Act 42 U.S.C. § 4321 ....................................................................................................................... 8 42 U.S.C. § 4332 ....................................................................................................................... 5 42 U.S.C. § 4332(2)(C) ....................................................................................................... 6, 22 REGULATIONS 33 C.F.R. § 230.14 .................................................................................................................... 6 33 C.F.R. § 320.4(a)(1) ........................................................................................................... 18 33 C.F.R. § 320.4(b)(1) ........................................................................................................... 18 33 C.F.R. § 327.4(b) ............................................................................................................... 22 33 C.F.R. Part 325, App. B § 11 ............................................................................................. 22 33 C.F.R. Part 325, App. B § 7(b)(1) ...................................................................................... 13 vi 3 PageID 856 33 C.F.R. Part 325, App. B § 7(b)(2) ...................................................................................... 13 33 C.F.R. Part 325, App. B § 7(b)(3) ...................................................................................... 19 40 C.F.R. § 230.10 .................................................................................................................. 16 40 C.F.R. § 230.10(a).............................................................................................................. 16 40 C.F.R. § 230.10(a)(3) ................................................................................................... 16, 18 40 C.F.R. § 230.93(a)(2) ......................................................................................................... 19 40 C.F.R. § 230.93(f)(2) ......................................................................................................... 20 40 C.F.R. § 230.94(e)(3) ......................................................................................................... 20 40 C.F.R. § 1500.1(b) ........................................................................................................... 5, 6 40 C.F.R. § 1500.1(c)................................................................................................................ 5 40 C.F.R. § 1501.2 .................................................................................................................... 5 40 C.F.R. § 1501.4 .................................................................................................................... 6 40 C.F.R. § 1502 ..................................................................................................................... 14 40 C.F.R. § 1502.2(g) ............................................................................................................. 15 40 C.F.R. § 1505.2 .................................................................................................................... 6 40 C.F.R. § 1506.5(a).............................................................................................................. 18 40 C.F.R. § 1506.6 (c)(1) ........................................................................................................ 23 40 C.F.R. § 1508.8(b) ............................................................................................................. 12 40 C.F.R. § 1508.9(a)(1) ........................................................................................................... 6 40 C.F.R. § 1508.9(b) ............................................................................................................. 14 40 C.F.R. § 1508.13 .................................................................................................................. 6 40 C.F.R. § 1508.14 .............................................................................................................. 8, 9 40 C.F.R. § 1508.27(b) ........................................................................................................... 10 40 C.F.R. § 1508.27(b)(1)....................................................................................................... 10 40 C.F.R. § 1508.27(b)(2) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(3) ....................................................................................................... 10 40 C.F.R. § 1508.27(b)(4) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(5) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(6) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(7)....................................................................................................... 10 40 C.F.R. § 1508.27(b)(9) ................................................................................................. 10, 11 40 C.F.R. § 1508.28 .................................................................................................................. 6 43 C.F.R. § 46.30 .................................................................................................................... 11 50 C.F.R. § 17.3 ...................................................................................................................... 27 50 C.F.R. § 402.02 ............................................................................................................ 24, 25 50 C.F.R. § 402.14(d) ............................................................................................................. 27 50 C.F.R. § 402.14(g) ....................................................................................................... 23, 24 50 C.F.R. § 402.14(g)(3) ......................................................................................................... 24 vii 3 PageID 857 50 C.F.R. § 402.14(h) ............................................................................................................. 23 50 C.F.R. § 402.14(h)(2) ......................................................................................................... 27 50 C.F.R. § 402.14(i) .............................................................................................................. 23 50 C.F.R. § 402.14(i)(4).......................................................................................................... 29 50 C.F.R. § 402.14(i)(l)(i) ................................................................................................. 27, 28 50 C.F.R. § 402.16(b) ....................................................................................................... 29, 30 50 C.F.R. § 402.16(c)........................................................................................................ 29, 30 RULES Fed. R. Civ. P. 56(a) ................................................................................................................. 3 viii 3 PageID 858 TABLE OF ACRONYMS AND ABBREVIATIONS COMMONLY USED IN DOCUMENTS RELATED TO THIS CASE 3PR – People for Protecting Peace River AEIS – Areawide Environmental Impact Statement APA – Administrative Procedure Act BO – Biological Opinion Center – Center for Biological Diversity CMR – Compensatory Mitigation Rule Corps – U.S. Army Corps of Engineers DAEIS - Draft Areawide Environmental Impact Statement EA – Environmental Assessment EIS – Environmental Impact Statement EPA – Environmental Protection Agency ESA – Endangered Species Act FAEIS – Final Areawide Environmental Impact Statement FONSI – Finding of No Significant Impact ITS – Incidental Take Statement LEDPA – Least Environmentally Damaging Practicable Alternative MMT – million short tons MMTPY – million short tons of phosphate rock per year NEPA – National Environmental Policy Act ROD – Record of Decision ix 3 PageID 859 Service – U.S. Fish and Wildlife Service SPBP – South Pasture Beneficiation Plant SPE Mine – South Pasture Extension Mine x 3 PageID 860 MOTION FOR SUMMARY JUDGMENT Plaintiffs move for summary judgment on all Counts in their First Amended Complaint, ECF No. 52, regarding the U.S. Army Corps of Engineers' Permit Number SAJ- 1993-01395,1 also known as the South Pasture Extension Mine (SPE Mine). Plaintiffs' Memorandum of Law supporting this Motion demonstrates that Defendants U.S. Army Corps of Engineers; Lt. Gen. Todd T. Semonite, in his official capacity as Commanding General and Chief of Engineers for the Corps; and Col. Jason A. Kirk, in his official capacity as District Commander for the Jacksonville District of the Corps (collectively, Corps) issued the SPE Mine permit in violation of the Clean Water Act, National Environmental Policy Act (NEPA), and Endangered Species Act (ESA), and in a manner that is arbitrary, capricious, and contrary to the Administrative Procedure Act (APA). The Corps also issued an Areawide Environmental Impact Statement (AEIS), which purports to analyze the SPE Mine and other mines in the area, in violation of NEPA, the ESA, and the APA. Defendants U.S. Fish and Wildlife Service; Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the Interior; and Jim Kurth, in his official capacity as Acting Director of the Service (collectively, Service) have also failed to protect imperiled species and their habitats as they relate to the AEIS and the SPE Mine, in violation of the ESA and APA. For the reasons set forth in the Memorandum below, Plaintiffs respectfully ask the Court to grant this motion, enter summary judgment for Plaintiffs on all counts, and enjoin Defendants from authorizing any activities in reliance on SAJ-1993-01395. Plaintiffs respectfully request a hearing on this motion and request thirty minutes. 1 This permit, including its application file, is or has been referred to as SAJ-1993-01395, SAJ-1993-01395 (SP- JPF), and SAJ-1993-01395 (IP-JPF), hereinafter, SAJ-1993-01395. 1 3 PageID 861 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION This case concerns the fate of west-central Florida, a region known for agriculture, cattle grazing, and recreational opportunities, but now threatened with tens of thousands of acres of phosphate mining that will violently transform the environment and destabilize rural communities. Plaintiffs, Center for Biological Diversity (Center), ManaSota-88, People for Protecting Peace River (3PR), and Suncoast Waterkeeper, and their members, are concerned about the future of their local communities and the environment, and are adversely affected by the Corps' and Service's actions, which set into motion an unlawful process that deprives the public agency decisionmakers of meaningful access to information. This highly controversial process produced a permit to gut thousands of acres of wetlands, streams, and productive crop land and pastures. Worse yet, it represents the first in a succession of related mine approvals, all of which intend to rely on the same fundamentally flawed process. STANDARD AND SCOPE OF REVIEW The APA provides for judicial review of agency actions, including decisions under NEPA, the Clean Water Act, and the ESA. 5 U.S.C. § 704; Fund for Animals v. Rice, 85 F.3d 535, 541 (11th Cir. 1996). A court must "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir. 2002); Am. Canoe v. White, 277 F. Supp. 2d 1244, 1258 (N.D. Ala. 2003). Agency action is arbitrary and capricious if the agency: relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view. 2 3 PageID 862 Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court considers "the entire administrative record." Sierra Club v. Army Corps, 295 F.3d at 1216. Summary judgment shall be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). ARGUMENT This morass began in 2012, when the Corps published a Draft Areawide Environmental Impact Statement for Phosphate Mining Affecting Waters of the United States in the Central Florida Phosphate District (DAEIS), which purported to assess the environmental impacts of permitting four phosphate mines—the SPE, Desoto, Ona, and Wingate mines—to disfigure more than 51,000 acres of wetlands, watersheds, and habitat in Hardee, Hillsborough, Manatee, Polk and DeSoto counties. AR_0179807; AR_0178392- 0179454. In 2013 the Corps published its Final Areawide Environmental Impact Statement on Phosphate Mining in the Central Florida Phosphate District (FAEIS), deferring site-specific assessments of the mines. AR_0253146; AR_0250075-0250124; AR_0250285-0253068. On June 16, 2016, the Corps released a Supplemental Environmental Assessment (EA).2 AR_0287129. The EA was the public's first opportunity to review the site-specific impacts of the SPE Mine, but rather than provide that, the EA largely referred the public back to the FAEIS. AR_0275348-0275394. On November 15, 2016, the Corps issued a Clean Water Act Section 404 permit for dredging and filling activities at the SPE Mine, AR_0289857-0292458, extending the existing South Pasture Mine and giving Intervenor 2 This included a draft public interest review, and draft Clean Water Act 404(b)(1) Guidelines analysis for the SPE Mine. 3 3 PageID 863 Mosaic 20 years to mine 7,513 acres in Hardee County. AR_0289830. In issuing this permit, the Corps denied multiple requests for public hearing. See, e.g., AR_0289807; AR_0287128. Our nation's laws—NEPA, the Clean Water Act, the ESA, and the APA—require the government to assess, stop or minimize, and mitigate the harmful effects of its actions on the human environment; however, these laws only work if they are followed. This action argues the government did not maintain the integrity of these laws in granting a controversial permit that will fundamentally change thousands of acres of Florida's wetlands, streams, and pastures. Relief from this Court is necessary to prevent further degradation of rural communities and shared environmental resources that are the heart of west-central Florida. I. Plaintiffs have standing to bring the claims in the Amended Complaint Plaintiffs are non-profit organizations and bring their claims on their own behalf and on behalf of their adversely affected members. Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006); see also Mader Decl.; Mele Decl.; Compton Decl.; and Burd Decl. Plaintiffs have Article III Constitutional standing to bring this action, and additionally meet the non-constitutional "zone of interests" test. Ouachita Watch., 463 F.3d at 1173; Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 781 F.3d 1271, 1282 (11th Cir. 2015); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984). Plaintiffs' members live, work, and recreate in the areas affected by the phosphate mines in the FAEIS.3 For example, 3PR member Henry Kuhlman lives just north of SPE Mine and enjoys flying his plane, tending his cattle, riding his off-road vehicle, and fishing in the area. Kuhlman Decl. at ¶ 6. He is concerned additional mining will degrade the region's 3 See also Richardson Decl.; Simpson Decl.; Dang Decl.; B. Armstrong Decl.; Hollenhorst Decl.; Ripberger Decl.; and Smith Decl. 4 3 PageID 864 ability to produce cattle, crops, and clean water. Id. at ¶ 13-17. 3PR and Center members Brooks and Nancy Armstrong are 10 miles from SPE Mine, five miles from Ona Mine, and are concerned about the effects of encroaching phosphate mining operations on their ability to enjoy wildlife on their property, including eastern indigo snakes and gopher tortoises. N. Armstrong Decl. at ¶ 7. 3PR members Hugh and Amy Richardson live just south of SPE Mine, directly across the street from Ona Mine, and are concerned about the impacts to hydrology, their wells, and wildlife on their property. Richardson Decl. at ¶ 5, 14. These are just a few of the many harms and injuries to Plaintiffs. II. The Corps is violating the National Environmental Policy Act Congress enacted NEPA to integrate into the normal business practices of the federal government procedures for an agency to meaningfully consider environmental and public interest factors prior to taking action. 40 C.F.R. § 1501.2; 42 U.S.C. § 4332; Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-49 (1989). NEPA requires informed decisionmaking and emphasizes public engagement in governmental decisions that may affect the human environment. Robertson, 490 U.S. at 349-50; 40 C.F.R. § 1500.1(b)-(c). Here, rather than following the commands of NEPA, the Corps clumsily mixed an areawide environmental analysis with its site-specific NEPA obligations for the SPE Mine. In doing so, it failed to analyze many impacts of the SPE Mine and unlawfully discounted the impacts it did identify. These failures not only violate the procedural requirements of NEPA but also undermine the Corps' duty to assess and disclose the significant effects of phosphate mining on the human environment, are arbitrary, and violate NEPA and the APA. 5 3 PageID 865 A. The Corps unlawfully deviated from the NEPA process of agency decisionmaking NEPA sets forth a predictable process for agency decisionmaking. 40 C.F.R. § 1500.1(b); Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976); Sierra Club v. Flowers, 526 F.3d 1353, 1361 (11th Cir. 2008). An agency must prepare an environmental impact statement (EIS) for any action that significantly affects the quality of the human environment. 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1501.4; Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng'rs, 833 F.3d 1274, 1278 (11th Cir. 2016). The agency concludes the EIS process by publishing a Record of Decision (ROD). See 40 C.F.R. § 1505.2; 33 C.F.R. § 230.14; Defs. of Wildlife v. U.S. Dep't of the Navy, 733 F.3d 1106, 1109-10 (11th Cir. 2013). An agency may prepare an environmental assessment (EA) to determine whether to prepare an EIS. 40 C.F.R. § 1508.9(a)(1); Coastal Conservation Ass'n v. Locke, No. 2:09-cv-641-FtM-29SPC, 2011 U.S. Dist. LEXIS 111814, *27 (M.D. Fla. Aug. 16, 2011). The agency concludes an EA with a decision to do an EIS, or it publishes a finding of no significant impact (FONSI). See also Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir. 1998); 40 C.F.R. § 1508.13. Where an agency addresses an areawide issue, it may utilize a tiered environmental analysis in which it prepares a general EIS and tiers from it a subsequent analysis focusing on site-specific projects. 40 C.F.R. § 1508.28. If an agency chooses this process, it can: (1) tier to the areawide EIS to produce a subsequent, site-specific EIS and ROD; (2) tier to the areawide EIS to produce an EA and FONSI; or (3) prepare a supplemental EIS. Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1251-53 (11th Cir. 2012); Defs. of Wildlife v. Salazar, 877 F. Supp. 2d 1271, 1297 (M.D. Fla. 2012). There are no exceptions 6 3 PageID 866 to this process for areawide EISs. In fact, the last time the government undertook a comprehensive review of phosphate mining in Florida, the Environmental Protection Agency (EPA)4 had jurisdiction over the phosphate industry and produced an areawide EIS, finding: [T]he purpose of an areawide or generic EIS is to examine areawide and cumulative short and long term effects of the continued expansion of. . . the phosphate industry. . . [and] establishes a basis for initiating site specific EIS's for new source mining and chemical processing operations. Each site specific EIS will develop a mining and reclamation plan based on Areawide EIS recommendations, and examine effects of the site specific mining and reclamation plan. AR_0001420. Yet the Corps did not follow these procedural steps. In contravention of this predictable process, the Corps approved the SPE Mine before issuing a ROD for the FAEIS; prepared a site-specific ROD before preparing a site-specific EIS; and otherwise completed its environmental review of the SPE Mine without conforming to the procedural processes set out by NEPA. This is contrary to NEPA, its regulations, and the agency's own assurances that it would issue an ROD on the FAEIS. AR_0178450; AR_0080148; AR_0081152; AR_0081803; AR_0081820-0081821; AR_0094047; AR_0096281. The distinction is not mere semantics. Such procedural improvisation frustrates the goals of NEPA, undermines the validity of the ROD, and erodes agency credibility and the public's trust. AR_0265887 (agencies should avoid the perception of a programmatic NEPA review that establishes a "shell game" that undermines "agency credibility and public trust").5 As a result, the Court "must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself." Sierra Club v. 4 The EPA is a cooperating agency in the present matter. 5 See, e.g., NEPA Task Force, Report to the Council on Environmental Quality, Modernizing NEPA Implementation, 39 (2003), https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf, cited at AR_0265887 in footnote 3. 7 3 PageID 867 Marin, 168 F.3d 1, 4 (11th Cir. 1999); see also Flowers, 526 F.3d at 1368 ("an agency's failure to follow its own regulations and procedures is arbitrary and capricious.") (internal citation omitted); Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254, 1259 (S.D. Fla. 2009) (Van Antwerp I), aff'd by 362 Fed. Appx. 100 (11th Cir. 2010) (Van Antwerp II). In failing to conclude the FAEIS with an ROD and EA with a FONSI or EIS, the Corps violated NEPA. B. The Corps must issue a site-specific environmental impact statement for the SPE Mine because it will have significant impacts on the human environment NEPA is intended to promote efforts to prevent or eliminate damage to the human environment. 42 U.S.C. § 4321. As it relates to the SPE Mine, however, the Corps' strained and piecemeal NEPA analysis falls short of adequately identifying and taking a "hard look" at all of the significant impacts of its action. 40 C.F.R. § 1508.14. The FAEIS does not provide the level of site-specific detail that NEPA demands, and the SPE Mine EA does not adequately supplement that analysis. Rather than incorporate the FAEIS by reference and then build upon that baseline in the SPE Mine EA, the EA merely incorporates the inadequate findings from the FAEIS and then omits any further site-specific analysis. As an example, for impacts to the physical substrate; water circulation, fluctuation, and salinity; suspended particulate/turbidity; contaminant availability; aquatic ecosystem; proposed disposal site; and cumulative effects, the EA states that "Chapter 4 of the FEIS describes the [ ] effects of the South Pasture Extension project." AR_0275372. However, the FAEIS does not analyze impacts on the resources other than to acknowledge the effects would be 8 3 PageID 868 moderate without mitigation.6 AR_0250645. Further, the Corps bases its surface water impacts analysis on a cursory review of the existing South Pasture Mine's well monitoring to find that the SPE Mine "would have a minor to moderate degree of effect." AR_0250712. It states that the SPE Mine would have "indirect effects on the aquatic biota," but doesn't state what they are, instead speculating that "as the project moves through the mitigation sequencing process. . . there will be a potential reduction in the linear footage of stream impacts and a necessary offset of any remaining unavoidable impacts with compensatory mitigation" and therefore, it "would have at most a moderate effect on aquatic biological communities, which would not be significant." AR_0250717.7 The Corps failed to adequately consider and analyze all of the significant impacts of its action on the human environment, an analysis that should have been conducted in a site- specific EIS. 40 C.F.R. § 1508.14. The Eleventh Circuit has adopted a four-part test to determine whether an agency's decision not to prepare an EIS is arbitrary and capricious: (1) the agency must accurately identify the relevant environmental concerns; (2) the agency must then take a "hard look" at those concerns when preparing the EA; (3) the agency must make a convincing case for a FONSI; and (4) if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum. Hill, 144 F.3d at 1450. In evaluating the severity of an impact of a proposed action, agencies must consider 6 The FAEIS referred to the fact that the Corps did not conduct an analysis on the effect of mining of 409 acres within the Payne Creek subwatershed, AR_0250639, and only found that the SPE Mine would reduce Horse Creek's flow by two to three percent. AR_0250641-0250642. 7 See AR_0250729-0250730; AR_0250748-0250749 for similar non-evaluation of site-specific impacts to wetlands and habitat, respectively. 9 3 PageID 869 factors like adverse and beneficial impacts; impacts to public health or safety; the unique characteristics of the area; the degree to which the effects are likely to be highly controversial, are highly uncertain, or involve unique or unknown risks; the precedential nature of the action; whether the action, along with other related actions, will cause a cumulatively significant impact on the environment; and impacts to endangered or threatened species and their habitat. 40 C.F.R. § 1508.27(b)(1)-(7), (9). Any "one of these factors may be sufficient to require preparation of an EIS in appropriate circumstances." Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 865 (9th Cir. 2005). First, the SPE Mine will cause impacts to "[u]nique characteristics of the geographic area," including "wetlands" and "ecologically critical areas," such as riparian forests, species' habitat, and karst features that provide valuable human services like water filtration and flood control.8 40 C.F.R. § 1508.27(b)(3); AR_0287358-0287359; AR_0287133; AR_0287147. For impacts to wetlands and streams, the FAEIS defers its analysis to its site- specific NEPA review. AR_0250730. In the site-specific review, however, the EA concludes the impacts will not be significant because the FAEIS "described the predicted effects on wetlands, and states that with mitigation, [SPE] would have no impact to a minor impact on wetlands." AR_0287146; see also AR_0250730. Such circular analysis violates NEPA. Idaho Conservation League v. U.S. Forest Serv., No. 1:11-cv-00341-EJL, 2012 U.S. Dist. LEXIS 124659, *29 (D. Idaho Aug. 29, 2012); S. Fork Band Council of W. Shoshone v. U.S. Dep't of Interior, 588 F.3d 718, 726 (9th Cir. 2009). 8 The karst features that underlie the mine sites have been specifically identified as unique physical features, and, because of that, "the character of the limestone underlying proposed temporary slime-storage areas should be investigated on a site-specific basis to assess the precise potential for impact." AR_0001424. Yet, a detailed analysis of these significant impacts never took place in the FAEIS or EA. 10 3 PageID 870 Second, as shown by thousands of public comments, the effects of mining are "highly controversial." 40 C.F.R. § 1508.27(b)(4); 43 C.F.R. § 46.30; AR_0287184-0287281; AR_0287282-0287408; AR_0251016-0252473. Third, because the SPE Mine "may establish a precedent for future actions with significant effects," including seven other planned mines, it should have been analyzed in its own site-specific EIS. 40 C.F.R. § 1508.27(b)(6); AR_0287359; AR_0250394. Fourth, the effects of phosphate mining on public health and safety underscore the degree to which the possible harm to the human environment is highly uncertain or involves unique or unknown risks. 40 C.F.R. § 1508.27(b)(2), (5); AR_0287358; AR_0287321; AR_0127993. Fifth, the SPE Mine may affect endangered or threatened species. 40 C.F.R. § 1508.27(b)(9); AR_0287359-0287374; FWS 022161-022203. Throughout the NEPA process, the applicant repeatedly requested that the Corps conduct a project-specific EIS for the SPE Mine, AR_0081834-0081835 AR_0083839- 0083841, because it recognized an EIS was "the most appropriate and prudent course of action for the site-specific needs of the SPE project in order to ensure NEPA compliance is comprehensively addressed." AR_0081834. Neither the FAEIS nor the EA analyzed the particulars regarding significant impacts of the SPE Mine on the human environment, and therefore the Corps must produce a site-specific EIS for the SPE Mine. C. The Corps unlawfully failed to analyze the reasonably foreseeable and significant indirect and cumulative impacts from phosphogypsum stacks The Corps identified the "need" for the action as "to continue supplying [Mosaic's] customers in the United States and over 40 countries with phosphate fertilizers and feed supplements for another 20 years." AR_0287124. Notably, the Corps explicitly excluded any alternative to phosphate mining that would avoid the use of conventional fertilizer. 11 3 PageID 871 AR_0250391. Despite receiving numerous requests—including from the EPA and Sarasota County, AR_0175523; AR_0175525; AR_0175527-0175595; AR_0225202-0225025; AR_0234723-0234727; AR_0251108—neither the FAEIS nor the EA analyzes the reasonably foreseeable significant indirect and cumulative impacts of fertilizer production on the human environment and public health.9 Such failure is in flagrant violation of NEPA and the APA. Phosphogypsum stacks are the reasonably foreseeable result of processing mined phosphate ore into fertilizer, and the stacks and their expansion are a direct result of phosphate mining, including the SPE Mine. 10 AR_0250315; see also 40 C.F.R. § 1508.8(b). In its capacity as a cooperating agency, the EPA stated that it "has long considered phosphogypsum to be a part of the mining waste stream and an associated potential environmental impact." AR_0175527. Yet, the Corps ignored this reality, decided that fertilizer plants and phosphogypsum stacks have "independent utility" from phosphate mines, and that it did not need to analyze their direct or indirect impacts. AR_0287128. The Corps defines a project as having independent utility "if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility." AR_0227245. Where an activity requiring a permit is "merely one component of a larger project," the scope of the environmental review should "address the impacts of the specific activity requiring the 9 Phosphogypsum is created when mined phosphate ore is treated with sulfuric acid to produce phosphoric acid - a main ingredient of synthetic fertilizer and the "need" for this project. AR_0250314-0250316. Phosphogypsum is also radioactive, a detail the Corps omits from the public-facing NEPA documents. AR_0001427-0001429. Phosphogypsum is stored in mountainous open-air heaps known as phosphogypsum stacks which are generally created on unused or mined-out land on the processing site. AR_0250315. These stacks have led to spills and have impacted water quality in west-central Florida. AR_0250492. 10 For every one ton of phosphoric acid created for fertilizer, Intervenor Mosaic produces five tons of radioactive phosphogypsum. AR_0225205; AR_0250315. 12 3 PageID 872 permit and those portions of the entire project over which the district engineer has sufficient control and responsibility." 33 C.F.R. Part 325, App. B § 7(b)(1). The district engineer has control and responsibility "where the environmental consequences of the larger project are essentially products of the Corps' permitted action." Id. § 7(b)(2). In determining that fertilizer plants have "independent utility," the Corps appears to have relied in-part on Mosaic's representation that the fertilizer plants would continue operations, regardless of whether the mines were permitted, by purchasing rock from other sources. AR_0250315-0250316. However, the record is replete with statements that directly refute this rationale. It is beyond dispute that these operations are fully integrated, from mining to fertilizer production. AR_0081961-0081963; AR_0275052 ("We are also vertically integrated to [ ] supply one of our key inputs, phosphate rock, to our phosphate production facilities). The Corps' own findings support the interdependence of mining and fertilizer production, including by explicitly rejecting any alternative that relies on importing phosphate rock to feed the fertilizer plants, AR_0250391, and by basing its alternatives analysis on the underlying prerequisite of local mining and processing, AR_0250391-93 (rejecting import/transport alternatives); AR_0287130 (establishing all alternatives must be within 10 miles of the South Pasture Mine beneficiation plant); AR_0081965 ("Hardee mine is the sole rock supply for CF's phosphate fertilizer production.")(emphasis in original). In Florida Wildlife Federation v. U.S. Army Corps of Engineers, the court found that "[r]epresentations by the applicant alone, who clearly has an interest in obtaining the permit and whose theory of 'independent utility' . . . cannot be sufficient to establish a project's independent utility." 401 F. Supp. 2d 1298, 1323 (S.D. Fla. 2005). The court further reasoned 13 3 PageID 873 that "the concept of 'independent utility' should not be manipulated to avoid significance or 'troublesome' environmental issues." Id. at 1315. There, as here, the Corps unlawfully based its "independent utility" determination on the representations of the applicant and in doing so, allowed a piecemeal analysis that improperly excludes the evaluation of the effects of the action. See id. at 1321-22. The Corps maintains it had no obligation to evaluate the indirect effects of fertilizer plants or phosphogypsum stacks but that it did consider their cumulative impacts, AR_0250602; however, this analysis is not reflected anywhere in the decision documents or administrative record. AR_0250821-0250838; AR_0287128. Agency action must be set aside if the agency fails to consider an important aspect of the problem. Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43. In failing to analyze fertilizer plants and stacks as indirect or cumulative impacts, neither the FAEIS nor the EA passes the NEPA hard look test. D. The Corps' purpose and need statement for SPE Mine is unlawfully narrow, disqualifying reasonable alternatives The purpose and need statement for the proposed action, 40 C.F.R. §§ 1502, 1508.9(b), refines the goals of the action and forms the foundation for identifying the range of reasonable alternatives. Van Antwerp I, 709 F. Supp. 2d at 1260. Defining a project's purpose and need is "a critical first step to the Corps' proper evaluation of practicable alternatives." Fla. Clean Water Network v. Grosskruger, 587 F. Supp. 2d 1236, 1243 (M.D. Fla. 2008). Accordingly, "[t]he purpose and need [in a NEPA review] should be written to avoid eliminating reasonable alternatives." AR_0265901-0265902. Agencies "may not define the objectives of an action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency's power would accomplish the goals 14 3 PageID 874 of the agency's action," making the environmental review a "foreordained formality." Citizens for Smart Growth v. Peters, 716 F. Supp. 2d 1215, 1223 (S.D. Fla. 2010); see also 40 C.F.R. § 1502.2(g). The purpose and need statements here fail to achieve this standard. The SPE Mine EA identifies the extraction of 3.37 million short tons of phosphate rock per year (MMTPY) for ten years, or a total of 33.7 million short tons (MMT) of phosphate over the life of the mine as the project need. AR_0287125.11 In defining the need so narrowly, alternatives that did not guarantee the extraction of that exact amount of phosphate were rejected. The applicant's "Preferred Plus Additional Avoidance and Maximum Framework Avoidance" alternative, AR_0287141-0287142, which is less environmentally damaging and meets the purpose of mining on the site was rejected because it would produce 5 percent less phosphate than the proposed project. Id. The Corps similarly dismissed the "Maximum Framework Avoidance" alternative. AR_0287142-0287143.12 The Court must set aside the Corps' action when it circumvents NEPA's obligation to "adequately consider[ ] and disclose[ ] the environmental impact of its actions." Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 98 (1983); Fla. Clean Water, 587 F. Supp. at 1243. By restricting the purpose and need statements, the Corps unreasonably excluded reasonable alternatives, AR_0250388; AR_0250391, and unlawfully predetermined the outcome of its decision, in violation of NEPA. Fla. Wildlife Fed'n, 401 F. Supp. 2d at 1329. 11 This amount was based on an amount based historic operations at the adjacent South Pasture Mine. 12 The Corps also dismissed the "no action alternative," an alternative that is mandated by NEPA and would have prevented mining in wetlands, because it would only allow the recovery of approximately seven percent of the total commercially mineable reserve on the SPE Mine. AR_0287136; AR_0287126-0287127. It also stated the Ona Mine and Wingate East Mine alternatives were not practicable because they are not equivalent to the SPE Mine's design and will not support the overall project purpose due to Mosaic's "mining development sequence." AR_0287133-0287134. 15 3 PageID 875 III. The Corps is violating the Clean Water Act Congress enacted the Clean Water Act to restore and maintain the "chemical, physical and biological integrity" of waters of the United States, 33 U.S.C. § 1251, and to attain that goal, prohibits the discharge of pollutants into U.S. waters without a permit. Id. § 1311(a). The Corps may not issue a permit to mine if: (a) there exists an environmentally preferable alternative; (b) the aquatic ecosystem would be significantly degraded; (c) impact minimization and mitigation are insufficient; or (d) an endangered species would be jeopardized. 40 C.F.R. § 230.10. Here, the Corps' analysis fails on all counts. A. The Corps fails to rebut the presumption that practicable alternatives with fewer impacts exist The Corps is prohibited from issuing a permit "if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem. . . ." Id. § 230.10(a). This is known as the "least environmentally damaging practicable alternative" (LEDPA), and the Clean Water Act mandates its selection. Id. When an activity is not water dependent,13 the Corps must presume that less environmentally damaging alternatives are available unless the presumption is rebutted by "clearly demonstrating" a practicable alternative is not available. Id. § 230.10(a)(3); Van Antwerp II, 362 Fed. Appx. at 106. This means the applicant must provide "detailed, clear, and convincing information proving that an alternative with less adverse impact is impracticable." Id. (quoting Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1269 (10th Cir. 2004)). The Corps is barred from "approving environmentally harmful activities in 13 An activity is "water dependent" only if it requires access or proximity to a wetland in order to fulfill its basic purpose. See 40 C.F.R. § 230.10(a)(3). The activity here is not water dependent. 16 3 PageID 876 wetlands if those activities might otherwise be relocated to upland locations." Van Antwerp I, 709 F. Supp. 2d at 1254. As with its NEPA analysis, the Corps summarily rejected any alternative that does not meet SPE Mine's "project specific-need" of 3.37 MMT per year, or 33.7 MMT over 10 years, including alternatives that would otherwise be the LEDPA. AR_0287125; AR_0287136-0287142. Intervenor Mosaic insisted that the Corps accept its project purpose, claiming that Mosaic's investment in the South Pasture Beneficiation Plant (SPBP) demonstrated a "fundamental need" to mine all ore reserves within pumping distance of the plant. AR_0263675. In accepting this premise, the Corps rejected any alternatives that did not involve mining in wetlands, claiming that a "No Action" or "Uplands Only" alternative does not meet Mosaic's "legitimate project objectives." AR_0263686. This "business as usual" approach to mining on wetlands ignores the Corps' LEDPA obligations. See Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1188-89 (10th Cir. 2002) (holding "[t]he CWA test is not [ ] whether features of a proposal would make a more desirable project. Rather the Applicant and the [Corps] are obligated to determine the feasibility of the least environmentally damaging alternatives that serve the basic project purpose."). Further, the applicant insisted that SPE Mine's "project purpose" be narrowly defined to only include extending the life of the South Pasture Mine and SPBP. AR_0254915. As a result, any alternative sites outside of the pumping distance of the SPBP were rejected.14 The Corps' exclusion of alternatives outside of a 10-mile radius predetermined the results of the LEDPA analysis and precluded analysis of alternatives involving importing phosphate rock. 14 The Corps likewise rejected alternatives that fell outside Mosaic's predetermined "mining sequence."AR_0287133. 17 3 PageID 877 AR_0226473; AR_0250392; AR_0251109; AR_0250391; AR_0250315. The Corps compounded its error by appearing to rely exclusively upon information submitted by Intervenor Mosaic, even though the Corps has a duty to independently verify such information. See Van Antwerp II, 362 Fed. Appx. at 106 (citing 40 C.F.R. § 1506.5(a)). In Van Antwerp I, the Court set aside the Corps' permit where it failed to (a) investigate claims by the applicant regarding the practicability of mining limestone in other locations; and (b) identify with specificity any potential replacement sources of limestone. 709 F. Supp. 2d at 1265. Here, the Corps' failures are even more severe because neither Mosaic nor the Corps prepared a study on the feasibility of using phosphate from outside of Bone Valley, nor did the Corps independently evaluate any studies or analyses. See also Utahns, 305 F.3d at 1187. Rather, in doing nothing more than acquiesce to the "business as usual" phosphate mining and wetland destruction and failing to conduct a defensible analysis, the Corps fails to overcome the presumption that there is a LEDPA. 40 C.F.R. § 230.10(a)(3). B. The Corps misapplies the Public Interest Review, predetermining the results The Corps must conduct a "Public Interest Review" which requires the Corps to (1) evaluate the probable and cumulative impacts of the proposed activity and its intended use on the public interest; and (2) balance the benefits which reasonably may be expected to accrue from the proposal against its reasonably foreseeable detriments. 33 C.F.R. § 320.4(a)(1). Because "[m]ost wetlands constitute a productive and valuable public resource," the guiding criterion in the Public Interest Review is that their "unnecessary alteration or destruction" should be "discouraged as contrary to the public interest." Id. § 320.4(b)(1); see also Deltona Corp. v. Alexander, 504 F. Supp. 1280 (M.D. Fla. 1981). To avoid an honest public interest 18 3 PageID 878 review, the Corps varied the scope of the SPE Mine which manipulated the results of the review. Specifically, the Corps abused its discretion by using a broader scope of analysis for the positive impacts of the SPE Mine—the benefits of fertilizer—while using a narrower scope of analysis for the negative impacts—omitting the impacts of actually producing fertilizer. AR_0287152-0287153; AR_0250785. Such "stacking of the deck" is categorically prohibited. See, e.g., Fla. Wildlife Fed'n, 401 F. Supp. 2d at 1327. "In all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal." 33 C.F.R. Part 325, App. B § 7(b)(3). C. The Corps fails to comply with the Compensatory Mitigation Rule The Compensatory Mitigation Rule (CMR) sets forth a "mitigation sequence," which means that "anyone wishing to obtain a permit to impact a wetland or other aquatic resource must first avoid and minimize impacts, and then compensate for unavoidable impacts." AR_0124293. Therefore, prior to considering mitigation, the Corps must require maximum avoidance through the LEDPA. Fla. Wildlife Fed'n, 401 F. Supp. 2d at 1308. The Corps improperly prioritized wetlands establishment over restoration; failed to account for the uncertainties inherent in reclamation, including the industry's past failure to comply with its mitigation obligations; and failed to account for the mine's temporal impacts on wetlands. In approving a mitigation plan, the Corps is required to prioritize wetlands "restoration" over wetlands "establishment" because restoration has a greater likelihood of success and reduces impacts to ecologically important uplands. 40 C.F.R. § 230.93(a)(2). Moreover, compensatory mitigation for streams should be provided through "rehabilitation, enhancement, or preservation since there is greater certainty that these methods of 19 3 PageID 879 compensation will successfully offset permitted impacts," Id. § 230.94(e)(3), and compensatory mitigation should be completed prior to proposed impacts to waters. The Corps must follow the CMR's "no net loss" standard, which requires a mitigation ratio greater than one-to-one to account for: (1) the method of compensatory mitigation; (2) the likelihood of success; (3) temporal losses of aquatic resource functions; and (4) the difficulty of restoring or establishing the desired aquatic resource type and functions. Id. § 230.93(f)(2). It also requires the Corps to "determine the appropriate time interval for distinguishing between temporary and permanent impacts" given the risk that "temporary impacts may result in permanent changes to, or losses of, specific functions." AR_0054628. Despite these mandates, the mitigation plan calls for 12 times more wetland establishment than restoration (1,568.7 acres of establishment and 122.7 acres of restoration), and 10 times more stream establishment than stream restoration (43,838 linear feet of stream channel establishment and only 4,204 linear feet of stream channel restoration). AR_0287122. The Corps did not even require a one-to-one ratio of mitigation through wetland preservation, conceding that the SPE Mine will impact 1,198.17 acres of wetlands, AR_0287121, but only requiring the preservation of 400.4 acres of wetlands onsite and 434.5 acres of wetlands offsite, for a total of 834.9 acres. Even when factoring in restoration (122.7 acres) and preservation (834.9 acres), AR_0287122, the Corps still falls short of requiring a one-to-one ratio. AR_0287122. And even when factoring in the disfavored "establishment," the mitigation ratio is barely two-to-one.15 In contrast, in Fund for Animals v. Rice, the Corps required, and the Court upheld, the preservation, restoration, or replacement of 332 acres of 15 2,526.3 acres of total mitigation (1,568.7 acres of establishment, 834.9 acres of preservation, and 122.7 acres of restoration) compared to 1,198.17 acres of wetland impacts is roughly a two-to-one ratio. 20 3 PageID 880 wetlands to mitigate impacts to 74 acres of "isolated" wetlands, a mitigation ratio of 4.5 to 1, and required the preservation of 2,970 acres of other lands to compensate for non-wetland impacts of the 895-acre project, a ratio of 3 to 1. 85 F.3d at 544. The CMR requires avoidance and minimization prior to mitigation because "there are still large gaps in the science of restoration ecology." AR_0124293. Numerous commenters highlighted the uncertainties and risks associated with reclamation. The Florida Association of Mitigation Bankers observed that technological advances have not addressed problems with predicting post-reclamation hydrology, AR_0224048, and that the "risk of unsuccessful mitigation on mined sites is understated. . . and [ ] should reflect the issues that have plagued the industry's post-reclamation (on-site) mitigation in the past, rather than optimistic speculation about the ability of new technology to resolve these issues." Id. The EPA also voiced concerns about the "creation" of herbaceous and forested wetlands, which it stated may result in unacceptable adverse impacts to waters of the United States over a 20-year duration. AR_0262215. The Corps itself conceded that "it is generally accepted that more research is needed to better understand how constructed wetlands compare to natural undisturbed wetlands," AR_0250930, and that "more research is needed to better understand how constructed streams compare to natural undisturbed streams."16 AR_0148809. The Corps also failed to take into account the applicant's record of non-compliance with its existing mitigation at the adjacent South Pasture Mine. The Corps found that the applicant inappropriately removed 1,298 acres of compensatory wetlands from that mitigation plan and that 127 acres of "enhanced" wetlands did not meet required 16 The FAEIS omits this conclusion and instead merely observes that "[a]dditional research would provide more information into how constructed streams compare to natural undisturbed streams." AR_0250932. 21 3 PageID 881 performance standards. AR_0263032-0263033. These failures violate the Clean Water Act. D. The Corps deprived the public of a hearing on the SPE Mine To ensure informed and transparent environmental decisionmaking, the Clean Water Act and NEPA require the opportunity for significant public engagement. 33 U.S.C. §§ 1251(e), 1344(a); 42 U.S.C. § 4332(2)(C). Corps regulations establish that a request for a public hearing "shall" be granted "unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interested served by a hearing," makes such a determination in writing, and communicates his reasons with the requesting party. 33 C.F.R. § 327.4(b); see also 33 C.F.R. Part 325, App. B § 11. The Corps denied the requests of the Center, and several other members of the public, for a public hearing on SAJ-1993- 01395. See AR_0289807; AR_0287128; AR_0287344; AR_0287374. In denying the Center's request, the Corps failed to state why it was denying the request beyond reciting the regulation. AR_0289807 ("I have reviewed the information you provided and have concluded that there is no valid interest to be served by a hearing."). Such a reply is inadequate and in violation of the Clean Water Act. Moreover, the SPE Mine deals with an issue of "substantial environmental controversy" and there was "substantial interest in holding a hearing," as evidenced by overwhelming public engagement. 40 C.F.R. § 1506.6 (c)(1); AR_0287128-0287129. While the Corps held hearings on scoping and the DAEIS, those meetings were four years before the site-specific review for the SPE Mine was made available and a year before the Corps issued an addendum to the FAEIS. In those intervening years, the Corps has made three requests for additional information, attempted to address numerous unresolved issues, revised 22 3 PageID 882 its Uniform Mitigation Assessment Method scoring, and amended the compensatory mitigation plan. AR_0280359-0280361. This shell game deprived the public of meaningful participation. IV. The Corps and Service are violating the Endangered Species Act The ESA reflects Congress' "plain intent. . . to halt and reverse the trend toward species extinction, whatever the cost." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). It requires the Service and federal agencies to "consult" on federal actions to ensure they will not "jeopardize the continued existence" of protected species. 16 U.S.C. § 1536(a)(2). When species may be affected by the action, the Service must consult with the federal agency and memorialize its decision in a biological opinion (BO). Id. § 1536(b); 50 C.F.R. § 402.14(g), (h). The ESA also prohibits "take" of protected species, which includes harassing, harming, or killing them, 16 U.S.C. § 1532(19), unless the Service lawfully issues an incidental take statement (ITS) authorizing a limited amount of take that is incidental to the federal action. Id. § 1536(b)(4)(C)(i); 50 C.F.R. § 402.14(i); Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1271-72 (11th Cir. 2009). Phosphate mining rips away all vegetation, changes the contours and characteristics of the soil, manipulates groundwater levels, and produces tons of hazardous waste; AR_0250398-0250400; AR_0250402-0250403, altering the complex hydrology, geology, and ecology of the area's rural and natural landscape. AR_0250749-0250750; AR_0250904; AR_0250909-0250910. Reclamation notwithstanding, mining activities will forever change the landscape, leaving only an attempted approximation of natural conditions. AR FWS 011851-011852. The ESA requires that the Service consider these impacts and ensure they 23 3 PageID 883 will not jeopardize species. 16 U.S.C. § 1536(a)(2), 50 C.F.R. §§ 402.02, 402.14(g). The Service must "[e]valuate the effects of the action and cumulative effects on the listed species." 50 C.F.R. § 402.14(g)(3). "Effects of the action" are extensive and include "the direct and indirect effects of an action on the species. . ., together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline." Id. § 402.02. The environmental baseline includes "the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early [ESA] consultation, and the impact of State or private actions which are contemporaneous with the consultation in process." Id. "This includes the effects of existing Federal projects that have not yet come in for their [ESA] consultation." AR_0021941. The "action area" includes "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action." 50 C.F.R. § 402.02. This comprehensive, common-sense review ensures federal actions will not push endangered or threatened species to the brink of extinction. A. The Corps and Service failed to consider the impacts of the mines planned for Bone Valley The Corps and Service arbitrarily and capriciously failed to take a hard look all impacts by failing to consult on the AEIS, to consider the cumulative effects of other mines in its consultation on the SPE Mine, and to analyze impacts from habitat destruction. The AEIS is a "programmatic level" action that requires its own consultation. Fla. Key Deer v. Paulison, 522 F.3d 1133, 1141-44 (11th Cir. 2008); Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1082, 1085 (9th Cir. 2015). The FAEIS provides the Corps with 24 3 PageID 884 discretion to consider species' protection through its environmental consequences and alternatives analyses, which can lead to choosing an outcome other than the originally proposed project; consequently, the Corps and Service should have consulted on it. Fla. Key Deer, 522 F.3d at 1141-44; but see Nat. Res. Def. Council v. Nat'l Park Serv., No. 2:16-cv- 585-FtM-99CM, 2017 U.S. Dist. LEXIS 61428, *103-104 (M.D. Fla. Apr. 24, 2017). Likewise, the environmental baseline for the SPE Mine should have included the Wingate East, Desoto, and Ona mines because the Service and Corps were in engaged in contemporaneous consultation on them. 50 C.F.R. § 402.02 (defining the environmental baseline to include projects that are undergoing or have undergone consultation); AR FWS 011763, 011659-011660, 011742, 012241, 012340-012344. Failure to consider the impacts of the three mines with those of the SPE Mine, either through consultation on the FAEIS or as part of the environmental baseline analysis for the SPE Mine consultation, violates the ESA and unlawfully leaves impacts on species entirely unconsidered. See Defs. of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 127 (D.D.C. 2001). As explained above, phosphate mining, fertilizer processing, and creation of phosphogypsum are vertically integrated and thus interdependent and interrelated actions that should have been analyzed as well. See 50 C.F.R. § 402.02 (definition of "effects of the action"). In the BO for the SPE Mine, the Service failed to adequately analyze the most significant impact mining will have on species: habitat destruction. The Service did this by improperly discounting the impacts of the 20-year mining permit as "temporary." AR FWS 022163, 022189, 022190, 022194, 022195, 022197, 022203. The characterization of the impacts to habitat as "temporary" overlooks the significant, long-term impacts of clearing 25 3 PageID 885 thousands of acres of the land and displacing species and native soils for more than a decade. AR_0277904-0277905. The ESA requires the Service to analyze the impact of habitat destruction and degradation regardless of its duration. See, e.g., Pac. Coast Fed'n of Fishermen's Ass'ns v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1037-38 (9th Cir. 2001) (concluding NMFS' failure to consider even short-term habitat degradation impacts was arbitrary and capricious). In addition, it discounts the effect on species from replacing that natural landscape with a mere "habitat analogue" that is designed only "to approximate. . . natural conditions." AR_0277904-0277905. Because natural conditions can only be approximated, not restored, it is arbitrary to characterize these impacts as temporary. Further, to "offset" the SPE Mine's impacts, the Service relies on mitigation measures that are unproven, unspecified, and unenforceable. See, e.g., AR_022189; AR_022203. This is in violation of the ESA's mandate requiring that "[m]itigation measures. . . be reasonably specific, certain to occur and subject to deadlines or other forcible obligations." Fla. Key Deer v. Brown, 364 F. Supp. 2d 1345, 1355-56 (S.D. Fla. 2005). The record reflects significant uncertainty with regard to whether mitigation measures proposed for the SPE Mine will be sufficient to render its impacts on species temporary. For example, although the Service concludes that the eastern indigo snakes will return to the SPE Mine site following reclamation, AR FWS 022199, the study it cites to support this conclusion did not examine whether species originally present on mine sites return after mining and reclamation. AR FWS 006369. Rather, it surveyed species presence at reclaimed sites and found indigo snakes at only 3 of 62 study sites. AR FWS 006369, 006448-006449. Likewise, non-peer-reviewed white papers touting the "success" of mitigation 26 3 PageID 886 strategies admit that previously reclaimed wetlands have not reached regulatory release criteria intended to evaluate mitigation success. AR_0288125. When considering the impacts of the action, the Service must use the "best scientific and commercial data available" and provide a "detailed discussion of the effects of the action on the listed species." 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(d), (h)(2); Fla. Key Deer, 364 F. Supp. 2d at 1353. These studies and papers fall far short of this requirement. Moreover, even if these impacts could be construed as temporary—which they cannot—nothing in the ESA or its implementing regulations permits the Service to ignore temporary impacts. B. The Service's ITS unlawfully fails to specify take and provide a meaningful trigger to reinitiate consultation "Take" of species includes "harassing" them, which means "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." 16 U.S.C. § 1532(19); 50 C.F.R. § 17.3. When the Service anticipates take will occur, it must issue an ITS that "specifies. . . the amount or extent of. . . incidental taking of a listed species." 50 C.F.R. § 402.14(i)(l)(i). An ITS may lawfully allow take of a threatened or endangered species "as long as the statement sets a 'trigger' for further consultation at the point where the allowed incidental take is exceeded, a point at which there is a risk of jeopardizing the species." Miccosukee Tribe, 566 F.3d at 1271-72. The purpose of this trigger is to "alert the agency when the allowed incidental take has been exceeded," and, thus, prevent irreversible harm to the species. Id. at 1272. The Service must establish a trigger by: (1) setting a numerical "cap" or, in limited circumstances, a rational surrogate to limit take; and (2) specifying monitoring 27 3 PageID 887 provisions to assess actual take and effectuate the trigger. Id. at 1275. The Service violated each of these requirements in its ITS for the SPE Mine. First, the Service failed to quantify take in the form of harassment for wood storks and eastern indigo snakes. For wood storks, the BO states that the project will "disrupt" the storks' ability to forage, yet the Service unlawfully declined to quantify those activities as a take because they will be "temporary." AR FWS 022203. Likewise, the BO and ITS acknowledge that "harassment is predicted" for eastern indigo snakes. AR FWS 022203. Yet unlike the numerical cap of "no more than six (6) indigo snakes" set for take for death or direct injury, AR FWS 022202, the Service set no cap on take for harassment, nor did it explicitly include such take in the six-snake limit set out for more direct forms of take.17 AR FWS 022203. The Service's failure to specify take for harassment of the wood stork and eastern indigo snake directly violates the ESA. 16 U.S.C. § 1536(b)(4)(C)(i); 50 C.F.R. § 402.14(i)(l)(i); see Miccosukee Tribe, 566 F.3d at 1275. Second, the Service failed to establish monitoring and reporting provisions that effectuate the "trigger" signaling authorized take has been exceeded. Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531 (9th Cir. 2010). Monitoring programs should be designed to: (1) detect adverse effects; (2) assess the actual level of incidental take compared to the anticipated incidental take in the Biological Opinion; and (3) detect when the level of anticipated incidental take is exceeded. AR_0021346. Here, the Service failed to provide effective monitoring provisions by failing to set monitoring requirements for take of eastern indigo snake egg clutches and take in the form of 17 By contrast, the Service explicitly accounts for take in the form of harassment for Audubon's crested caracara. AR FWS 022202. 28 3 PageID 888 harassment for caracaras and wood storks. AR FWS 022201-022203. The Service also concedes that "the only direct measure of harassment of eastern indigo snakes will be. . . annual counts of indigo snakes recorded on site and reported during annual monitoring events." AR FWS 022203. This monitoring mechanism is ineffective and unlawful because it "stands in marked tension with the regulatory requirement that [the agency] reinitiate. . . consultation 'immediately'" if incidental taking is exceeded. Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 498-99 (D.D.C. 2014) (quoting 50 C.F.R. § 402.14(i)(4) in finding a monitoring mechanism that assessed take every five years was ineffective). C. The Corps and Service unlawfully failed to reinitiate consultation The Corps' and Service's duties to consider species impacts are ongoing, and they must reinitiate consultation if (1) "new information reveals effects of the action that may affect listed species. . . in a manner or to an extent not previously considered" or (2) if subsequent to completion of consultation, "the identified action is. . . modified in a manner or to an extent not previously considered." 50 C.F.R. § 402.16(b), (c). Here, (1) the activities at the SPE Mine were modified in a manner or to an extent not previously considered by the Service during the more than two years between the Service's BO and the Corps' permit for the SPE Mine, e.g., compare AR_0275566; AR_0275568-AR_0275570 with FWS 011296; FWS 011296-FWS 01129697 (demonstrating changes in types of wetland reclamation and diversity of plant species used in wetland reclamation, which occurred after the BO); (2) scientists published new information demonstrating the eastern indigo snake analyzed in the 2014 BO is in fact two genetically distinct—and consequently rarer—species, AR FWS 022228-022248, meaning the SPE Mine's impacts on individual snakes will impact the 29 3 PageID 889 species as a whole to a greater degree than previously considered; and (3) a sinkhole opened beneath a phosphogypsum stack at Mosaic's New Wales plant on September 15, 2016, allowing at least 215 million gallons of contaminated waste water to pour into the Floridan aquifer. AR_0292514-0292515. The agencies' failure to reinitiate consultation on these previously unconsidered impacts violates the ESA and APA. See 50 C.F.R. § 402.16(b), (c). D. The Corps' reliance on the BO violates the ESA and APA The Corps has an independent duty to ensure its actions do not jeopardize listed species. It cannot abrogate that responsibility by arbitrarily and capriciously relying on an insufficient BO or concurrence letter. See Fla. Key Deer, 522 F.3d at 1144-45. Because the BO and ITS violate the ESA and APA, the Corps' reliance on them to fulfill its procedural and substantive consultation obligations is arbitrary, capricious, and in violation of the ESA. See Haw. Longline Ass'n v. Nat'l Marine Fisheries Serv., 281 F. Supp. 2d 1, 26-27 (D.D.C. 2003) (finding an agency acted arbitrarily and capriciously by relying on an invalid BO). CONCLUSION For these reasons, Plaintiffs respectfully request this Court grant them summary judgment on all Counts and (1) vacate and remand the EA, FAEIS, ROD, and SAJ-1993- 01395; (2) declare that the Corps' approval of SAJ-1993-01395 violated NEPA, Corps regulations, and the APA; (3) vacate and remand the Service's 2014 biological opinion; (4) declare that the Corps' and Service's consultation on SAJ-1993-01395 violated the ESA and the APA; and (5) declare and order that the Corps and Service reinitiate consultation on SAJ- 1993-01395. 30 3 PageID 890 Dated: June 30, 2017 /s/ Jaclyn Lopez JACLYN LOPEZ, Trial Counsel FL Bar No. 96445 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (727) 490-9190 Fax: (520) 623-9797 jlopez@biologicaldiversity.org /s/ Hannah M.M. Connor HANNAH M.M. CONNOR FL Bar No. 125378 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (202) 681-1676 Fax: (520) 623-9797 hconnor@biologicaldiversity.org /s/ Elise Pautler Bennett ELISE PAUTLER BENNETT FL Bar No. 106573 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (727) 755-6950 Fax: (520) 623-9797 ebennett@biologicaldiversity.org /s/ John Peter Rose JOHN PETER ROSE CA Bar No. 285819 (pro hoc vice) Center for Biological Diversity 1212 Broadway, Suite #800 Oakland, CA 94612 Tel: (510) 844-7100 Fax: (510) 844-7150 jrose@biologicaldiversity.org 3 PageID 891 CERTIFICATE OF SERVICE I hereby certify that on June 30, 2017, I electronically filed the foregoing Motion for Summary Judgment and Supporting Memorandum of Law with the Clerk of the Court by using the CM/ECF system, which served all counsel of record registered with the CM/ECF system for this case. /s/ Jaclyn Lopez JACLYN LOPEZ, Trial Counsel FL Bar No. 96445 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (727) 490-9190 Fax: (520) 623-9797 jlopez@biologicaldiversity.org