A recent—but Chevron-era—federal case in the Southern District of Florida gave us a detailed look at the complexities of dealing with cross-motions for summary judgment in complex environmental contamination and permitting litigation. In Conservancy of Sw. Florida, Inc. v. Williams, 13-14477-CIV, 2018 WL 11422990 (S.D. Fla. Dec. 21, 2018), three non-profit environmental protection organizations sued the United States government (US Fish and Wildlife Services, US Department of the Interior, United States Army Corps of Engineers, and related individual leadership parties), alleging that a Clean Water Act permit issued to a construction materials mining company in Florida, allowing a sand and limestone mining operation, illegally harmed the environment under various statutes. The mining company and a related company intervened in the action. All parties moved for summary judgment. The court described the facts and issues as follows:

Plaintiffs, the Conservancy of Southwest Florida Inc. (“Conservancy”), the Center for Biological Diversity (“Center”), and the Sierra Club (“Club”), (collectively “Plaintiffs”) are non-profit organizations who have filed suit against Defendants United States Fish and Wildlife Services (“FWS”), Larry Williams in his official capacity as State Supervisor and Field Supervisor for the FWS, Sally Jewel in her official capacity as Secretary of the United States Department of the Interior, Daniel Ashe in his official capacity as the director of FWS, United States Army Corps of Engineers, (“Corps”), Alan Dodd in his official capacity as District Commander of Corps, and Thomas Bostick, in his official capacity as the commander and Chief of the Engineers of Corps, (collectively “Federal Defendants”).

In 2012, the Corps issued a 15 year Clean Water Act § 404 permit to Cemex Construction Materials of Florida, LLC (the “Applicant” or “Cemex”) to construct and operate a 967.65 acre sand and limestone mine operation called “Hogan Island Quarry” (the “Project”) [ECF No. 1, at 2]. According to the Corps’ Environmental Assessment and Statement of Findings (“ACE”), the Project’s purpose and need is “[t]o establish a Florida Department of Transportation (“FDOT”) grade limerock extraction operation to serve the Southwest Florida market.” [ECF No. 44-48]. The Project is located in an area where habitats for imperiled species such as Florida panthers, wood storks, crested caracaras, and eastern indigo snakes are located. [ECF No. 1, at 28].

Plaintiffs allege that by issuing this permit the Corps violated the Clean Water Act (“CWA”), the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act (“APA”) and the Endangered Species Act (“ESA”). Id. at 3.

Plaintiffs assert that the Corps violated these statutes “by relying on a flawed Biological Opinion (“BiOP”) issued by the FWS” that failed “to adequately analyze the direct and indirect impacts mining will have on the Florida panther and wood stork”. Id. Plaintiffs also allege that the Project adversely affect the crested caracara and eastern indigo snake. Id. at 4. Plaintiffs further assert that FWS’ BiOp is arbitrary and capricious and thus seek a declaratory judgment, asking this Court, among others, to declare (1) that the Corps’ decision to issue the CWA § 404 permit for the Project is in violation of the ESA, the CWA, the NEPA, and the APA; (2) that the Corps’ decision to grant the permit is a major federal action that significantly affects the quality of the human environment; (3) that the FWS’ biological opinion for the Project is arbitrary and capricious and in violation of the ESA and the APA; and (4) that the Corps’ reliance on FWS’ biological opinion is arbitrary and capricious and violated the ESA. Id. at 67.

Plaintiffs also ask the Court to rescind the permit at issue and permanently enjoin the Corps from authorizing any action under the permit until the it fully complies with the requirements of CWA, NEPA, APA, ESA. Id. Finally, Plaintiffs request this Court to direct FWS to withdraw the biological opinion and reinitiate consultation with the Corps in accordance with the ESA and APA and prepare a biological opinion that complies with ESA. Id. at 68. After the Complaint was filed, Cemex and Barron Collier Companies (“Intervenor Defendants”) filed a joint motion to intervene as Defendants and this Court granted their Motion to Intervene. All parties then moved for summary judgment, and the Court now considers these motions.

Conservancy of Sw. Florida, Inc. v. Williams, 13-14477-CIV, 2018 WL 11422990, at *1-*2.

The court noted that the standard of review applicable was provided by the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, which empowers a court to strike down agency actions taken “without observance of procedure required by law.” Oregon Envt’l Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987). The court reviews the Corps’ decision to proceed with issuing the 404 Permit to determine whether such action was “arbitrary, capricious, an abuse of discretion, or otherwise not according to law,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(a) and (d). The Supreme Court has explained that:

To make this finding the court must consider whether the decision was based on a consideration of relevant factors and whether there has been a clear error of judgment … Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Id. at *3.; citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971); North Buckhead Civic Assoc. v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990)(applying arbitrary and capricious standard in review of Corps actions under NEPA); Fund for Animals v. Rice, 85 F.3d 535, 541 (11th Cir. 1996) (applying arbitrary and capricious standard in review of Corps actions under NEPA and ESA); see also Environmental Coalition of Broward County, Inc. v. Myers, 831 F.2d 984,986 (11th Cir. 1987) (courts should give deference to the agency determination in the case of “complex environmental statutes such as the Clean Water Act.”).

“Chevron deference” was still the law of the land in 2018. In 2024, Loper Bright Enterprises v. Raimondo, Secretary of Commerce and Relentless, Inc. v. Department of Commerce overruled Chevron v. NRDC, the 1984 case that established the bedrock Chevron doctrine. That is the subject of a different article.  In short, this author questions whether the result of Williams would be different today. Courts have always—and will always—defer to expert testimony on complex scientific matters. In other words, it is debatable whether Chevron was ever as important as it seemed. As discussed below, the court’s decision in Williams was principally based on the various environmental statutes’ main requirement being procedural, not results-based. Under the statutes at issue, the government—before issuing the permit—was required to consider things such as cumulative impacts and less-harmful alternatives. The court did not need to use “Chevron deference” to conclude that the government had satisfied the requirements imposed by the environmental statutes at issue.

In 2018, in any event, the Williams court noted:

Furthermore, courts properly grant deference both to the agency’s construction of the statutory scheme it administers (see e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984); Environmental Coalition of Broward County, 831 F.2d at 986), and to the agency’s special expertise (see e.g., Baltimore Gas & Electric, 462 U.S. at 103); Avoyelles Sportsmen League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983)). An agency is granted the highest possible level of deference when interpreting its own regulations. Particular deference is accorded to the informed discretion of the responsible federal agencies where issues of science or technical expertise are involved. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989); Baltimore Gas & Electric, 462 U.S. at 103.

The overarching principle of judicial review of agency action, said the Williams court, is that a court must judge the agency’s decision based on the administrative record that was before the agency. Citizens to Preserve Overton Park, 40 U.S. 402, 419-20 (1971) (judicial review of agency action must be based on “the ‘whole record’ compiled by the agency”); Camp v. Pitts, 411 U.S. 138 (1973) (overturning lower court decision permitting additional fact-finding in court in review of agency decision); Pollgreen v. Morris, 770 F.2d 1536, 1545 (11th Cir. 1985). This means:

The court should uphold the agency’s action if the record shows that the agency “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas. 462 U.S. at 105 (emphasis added). Although this inquiry is to be searching and careful, the arbitrary and capricious standard gives the court the “least latitude in finding ground for reversal.” N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990). A decision should not be set aside “simply because the court is unhappy with the result reached.” Id. at 1539

Id. (emphasis added). Under Chevron:

The rationale for limiting judicial review to the contents of the administrative record is that a reviewing court can determine agency compliance with the law solely on the record on which the action was based. Citizens to Preserve Overton Park, 401 U.S. at 419. It is intended to protect the administrative process and to preclude the reviewing court from conducting a de novo trial and substituting its opinion for that of the agency. Further, review on the record “expedites the process for review, avoids time-consuming and burdensome discovery, reduces litigation costs, and ensures that the reviewing court’s attention is focused on the criteria used in selecting [the action].” Arizona v. Motorola, 139 F.R.D. 141, 149 n. 9 (D. Ariz. 1991) (discussing review of CERCLA response action on administrative record).

Conservancy of Sw. Florida, Inc. v. Williams, 13-14477-CIV, 2018 WL 11422990, at *1–3 (S.D. Fla. Dec. 21, 2018).

Turning to the motions at issue, the court noted that the plaintiffs sought summary judgment on all five counts of their complaint. The federal defendants cross-moved for summary judgment in their favor and the intervenor defendants adopted the federal defendants’ summary judgment motion.

The court noted that:

A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). By its very terms, this standard provides that “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue of fact is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Anderson, 477 U.S. at 248; Matsushita Electric Indus. Co., 475 U.S. at 586. It is “material” if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248. In addition, in considering a motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-moving party. Id.at 255.

Id. at *4 (emphasis added).

The court noted that (again, under Chevron),

… “[h]owever, even in the context of summary judgment, an agency action is entitled to great deference.” Preserve Endangered Areas of Cobb’s History, Inc., 87 F. 3d at 1246. Under the APA, this Court reviews an agency action to determine whether the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Citizens to Pres. Overton Park, Inc., 401 U.S. at 416. “Under this standard, … [this Court] give[s] deference to a final agency decision by reviewing for clear error, and … [this Court] cannot substitute … [its] own judgment for that of the agency.” Sierra Club v. Johnson, 436 F. 3d 1269, 1273 (11th Cir. 2006). The Court must consider whether the agency’s decision “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. at 1273-74 (internal quotation marks and citations omitted); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“Normally, an agency rule would be arbitrary and capricious if the agency has 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 or the product of agency expertise.”). The Court now considers the parties’ motions for summary judgment, which discuss violations of the NEPA, the CWA, and the ESA.

Turning to the merits, the court first discussed the National Environmental Policy Act (NEPA). The plaintiffs raised a number of arguments, which they contended demonstrated that the Corps had violated NEPA.  The defendants disputed these arguments and contended that the Corps had complied with NEPA. The court described the purpose of NEPA:

NEPA, 42 U.S.C. § 4321 et seq. declares a broad national commitment to protecting and promoting environmental quality. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). This commitment is implemented by ensuring that the evaluation of important environmental consequences takes place early in a project’s planning process and by focusing government and public attention on the environmental effects of proposed agency action. Id. at 1845; Marsh, 490 U.S. at 360.

Id. at *5. NEPA’s main focus is procedural:

NEPA establishes some important “action forcing procedures” designed to compel an agency to commit to the Act’s expressed goals of protecting and promoting environmental quality. Robertson, 490 U.S. at 346-48. The Act’s action forcing provisions impose essentially procedural requirements on federal agencies. Vermont Yankee Nuclear Power Corp., 435 U.S. at 558.

The court also recognized that:

The Council on Environmental Quality (“CEQ”), an Executive Branch agency, has issued NEPA regulations that apply to all federal agencies. 40 C.F.R. §§ 1500-1508. These regulations are entitled to substantial deference from the courts. Marsh, 490 U.S. 360, 372 (1989). The Corps has also adopted its own NEPA regulations to supplement the CEQ regulations. 33 C.F.R. pts. 320, 325. NEPA requires that federal agencies proposing “major federal actions significantly affecting the quality of the human environment” prepare a detailed Environmental Impact Statement or EIS, which provides an assessment of the beneficial and adverse environmental effects of the proposed action. In determining whether an environmental impact statement is necessary and the effects of the action are significant, an agency prepares an environmental assessment, which “serves to [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). “Thus, an agency will reach one of two conclusions in an … [environmental assessment]: ‘either that the project requires the preparation of an … [environmental impact statement] to detail its environmental impact, or that the project will have no significant impact … necessitating no further study of the environmental consequences which would ordinarily be explored through an … [environmental impact statement].’ ” Hill v. Boy, 144 F. 3d 1446, 1450 (11th Cir. 1998) (quoting Sabine River Auth. v. U. S. Dep’t of Interior, 951 F.2d 669, 677 (5th Cir. 1992)). NEPA also requires that all federal agencies “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2).

Id. (emphasis added). The adequacy of an EIS, said the court, depends on whether the agency followed the procedure required by law in its preparation. Courts will require only the statutory minimum and will undertake their review with a recognition that Congress did not mandate perfection. Sierra Club v. Morton, 510 F.2d 813, 820 (5th Cir. 1975). A court’s only role is to insure that the agency has taken a “hard look” at the environmental consequences of the proposed action. Druid Hills Civic Ass’n v. Federal Highway Admin., 772 F.2d 700, 709 (11th Cir. 1985), cert. denied, 488 U.S. 819 (1988). “NEPA merely prohibits uninformed – rather than unwise – agency action.” Robertson, 490 U.S. at 350. The agency then is supposed to gather public and other agency comment on its EIS.

NEPA, said the court, “is not a substantive environmental statute which dictates a particular outcome if certain consequences exist. Instead, NEPA creates ‘a particular bureaucratic decisionmaking process.’ ” Sierra Club v. Corps, 295 F. 3d 1209, 1214 (11th Cir. 2002) (quoting Sierra Club v. Marsh, 872 F.2d 497, 497 (1st Cir. 1989)). In other words, “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh, 490 U.S. at 371.

Turning to the facts at issue, the Williams court concluded there was no dispute that the permit at issue was a “federal action” invoking NEPA. Thus, the Court was required to address whether the permit was in compliance with NEPA.

The plaintiffs argued that the Corps’ environmental assessment “failed to rigorously and objectively evaluate all reasonable alternatives” and that the Corps “failed to examine the cumulative impacts of the proposed action.” The court disagreed, finding that the Corps did not fail to “rigorously evaluate all reasonable alternative sites and designs that would avoid and minimize wetland impacts.” The court also found that the Corps did take a “hard look” at the cumulative impacts of the proposed and reasonable foreseeable rock mining in the nearby developments.

The plaintiffs first argued that the Corps violated NEPA because its environmental assessment failed “to rigorously evaluate all reasonable alternative sites and designs that would avoid and minimize wetland impacts.” Addressing this argument, the court stated:

NEPA requires that an environmental impact statement “include … a detailed statement … on … alternatives to the proposed action[.]” 42 U.S.C. § 4332(C)(iii). The requirement is “bounded by some notion of feasibility[,]’ ” however. Druid Hills Civic Ass’n, Inc., 772 F.2d at 713 (quoting Vermont Yankee Nuclear Power Corp., 435 U.S. at 551), and as the Supreme Court has stated, a “ ‘detailed statement of alternatives’ cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man or … because [it] failed to ferret out every possible alternative….’ ” Vermont Yankee, 435 U.S. at 551. “Review of NEPA claims is limited to procedural compliance with NEPA rather than the substance of the decision.” Fla. Keys Citizens Coal, Inc., 374 F. Supp. 2d at 1144. The Court may not “call into question any reasonable agency methodologies used in arriving at its conclusion.” Id. (quoting Protect Key West, Inc. v. Cheney, 795 F. Supp. 1552, 1559 (S.D. Fla. 1992)).

Id. at *7 (emphasis added). The CEQ regulations, observed the court, emphasize the importance of alternatives analysis (40 C.F.R. § 1502.14 (2004)) and require that the environmental impacts of both the proposal and alternatives to it be presented in comparative form, providing a clear basis for choice by the decisionmaker. “Consideration of other realistic possibilities forces the agency to consider the environmental effects of a project and to evaluate against the effects of alternatives.” N. Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1541 (11th Cir. 1990). Alternatives need not include unrealistic options. Id. The range of alternatives to be considered is bounded by “some notion of feasibility,” and consideration need only be given to reasonable, non-speculative alternatives. Id.

The plaintiffs argued that the Corps’ environmental assessment of its alternatives analysis lacked independent review of statements provided by Cemex. Further, the plaintiffs alleged that the Corps accepted applicants’ statements without data and without evaluating information that was in the record concerning the availability of alternative properties. Id. According to the Corps, however, in preparing its environmental assessment, it “conducted an independent review of the applicant’s alternative analysis.”

The Court found that the Corps had satisfied its obligation of analyzing alternatives to the Hogan Island site. The court reasoned:

The Corps conducted an evaluation of the eleven sites assessed by Cemex: Fountains, Duda, Bell Pepper, Floriland, Peacock Groves, Gopher Ridge, Old Corkscrew, Westwind, Schwab, Florida Farms and Hogan Island. [ECF No. 44-48 at 11]. Cemex considered these sites under several criteria: location, the presence of FDOT-quality lime rock, sufficiency of its volume and depth in a region that has a demand for product. Id. The Corps examined in detail the rationale provided by Cemex as to why each of the ten other alternative sites was not suitable for the Project, and made its own findings as to why no less damaging practicable alternatives were available that would satisfy the Project’s purpose. Id.

The Corps further requested additional information from Cemex regarding the sufficient quantity of limestone deposits at Hogan Island site. Based on the Corps’ analysis, six of the elven sites (Duda, Bell Pepper, Floriland, Peacock Groves, Westwind and Gropher Ridge) did not contain sufficient limestone deposits to make the project feasible and four of the sites (Fountains, Old Corkscrew, Schwab, and Florida Farms) were not of FDOT quality and thus did not meet the purpose of the project. After examination of the ten sites and comparison with the Hogan Island site, the Corps concluded that no less environmentally damaging practicable alternatives to the Hogan Island site were available. These findings are entitled to deference and outside the expertise of this Court. As stated above in section II, the role of the Court in this case is to determine whether the Corps has complied with the procedural duties mandated by the Act within the framework of meeting the substantive purposes or goals of NEPA. Plaintiffs make the conclusory argument that the Corps did not rigorously evaluate all reasonable alternative sites and designs. There is no indication in the environmental assessment that the Corps failed to compare Hogan Island site to the other ten available sites and determine their unsuitability for the project. See [ECF No. 44-48 at 11-12]. Based on the record submitted by the Corps, the Corps looked at all the information provided by the applicant, held meetings, asked questions from the applicant and used its judgment to determine that there were no practicable alternatives. As previously discussed, this Court does not find that the Corps’ assessment of the alternatives was not objective or rigorous. Thus, the Court finds Plaintiffs’ first NEPA argument without merit.

Id.

Turning to the next issue, cumulative impacts, the court noted that the plaintiffs further argued that the Corps violated NEPA because it failed to take a “hard look” at the “cumulative impacts of reasonably foreseeable mining and development in the area.” More specifically, the plaintiffs argued that the Corps failed to properly assess the direct, indirect, or cumulative impact from reasonably foreseeable mining activities in the area where the mine project was going to take place. The court observed:

In the environmental assessment, the Corps found that the Project may result in a significant impact on the human environment. [ECF No. 31-1 at 8]. Plaintiffs contend that the Corps failed to consider other residential, commercial and other intensive land uses in finding no significant degradation in their environmental assessment, the Corps improperly ignored evidence of cumulative degradation, improperly ignored evidence of cumulative flow-way degradation, and improperly ignored evidence of cumulative habitat degradation. Id. This Court disagrees and finds that the Corps appropriately assessed the cumulative impacts of the nearby developments.

The court rejected the plaintiffs’ argument on cumulative impacts, reasoning:

As stated above, an environmental assessment, “serves to [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). In determining whether to prepare an environmental impact statement, the significance of the effect on the quality of the human environment must be assessed. 42 U.S.C. § 4332(2)(C). “Significance exists [and thus, an environmental impact statement must be prepared] if it is reasonable to anticipate a cumulatively significant impact on the environment.” 40 C.F.R. § 1508.27(b)(7). CEQ regulations define cumulative impacts as impacts that result “from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7.

The plaintiffs pointed to the existence of five proposed future mines, each within a few miles from the Project, that Corps had knowledge of by way of their application for permit. These proposed mines included Old Corkscrew Plantation Mine (approximately 5.8 miles); Lost Grove Mine (approximately 6.5 miles); Troyer Mine (approximately 6.7 miles); Immokalee Sand Mine (approximately 7.1 miles); and FFD MEPD Mine (approximately 8.1 miles). There was, however, no discussion of the impacts of these proposed future mines in conjunction with the Project in the environmental assessment. The Corps justified its failure to assess the cumulative impacts of these projects by arguing that they “were not reasonably foreseeable.” Specifically, the Corps argued that those projects had only been proposed but none were authorized when the Corps issued its environmental assessment. Id. The Corps relies on the Eleventh Circuit’s holding in City of Oxford, GA v. F.A.A., 428 F.3d 1346 (11th Cir. 2005), and stated that it “had no basis beyond speculation that would allow it to assess the environmental impacts or developments that were not yet definitively sited or developed.” Id. The Court agreed with the defendants’ reliance on City of Oxford.

In City of Oxford, the Eleventh Circuit explained that when defining “foreseeable actions,” NEPA contains an implicit rule of reason, which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process.  Id.; Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004). The Eleventh Circuit further stated that agencies are to conduct the NEPA process with a view to the purposes underlying NEPA, and held that, in light of those purposes, an agency’s cumulative impacts analysis should be restricted to foreseeable future actions to ensure that the details of these actions are sufficiently concrete for the agency to gather information useful to itself and the public.  Id. at 1353-54. The Fifth Circuit in Medina Cnty. Envtl. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687 (5th Cir. 2010), noted the court, interpreted the “reasonably foreseeable” standard for assessing cumulative impacts under NEPA as having a substantial degree of certainty. Id. at 703.

In Williams, the court noted that, in accordance with the CEQ regulations, the Corp devoted 12 pages of its environmental assessment to discussion of the cumulative and secondary impacts of the Project. At the onset, the Corps expressly recognized and discussed in some detail the issues such as wetland flow ways, habitat corridors for wildlife including the panther, hydrologic impacts associated with mining and agriculture, and ecological restoration in downstream portions of the watershed. Id. Furthermore, the Corps considered the Project in the context of other projects within the watershed, which were primarily for single-family residences, and noted the natural resources change and stressors in the area: traffic and hydrological manipulation.

The Corps acknowledged permitted activity in the area and the projects that were permitted at the time of its decision. The five mining projects that were being challenged as not having been included in the cumulative impacts analysis were not yet permitted. Pursuant to the Eleventh Circuit standard, said the court, in order to be included in the cumulative impact analysis, the action must be one that is reasonably foreseeable proposed. The actions at issue were proposed, said the court, but they were not reasonably foreseeable. The Corps, said the court, did not have the substantial degree of certainty that those projects would go forward. Notwithstanding the absence of substantial degree of certainty, the Corps had informed the Court that all five permits that had been challenged were either suspended or withdrawn. The court also reemphasized the Chevron view that the Corp was entitled to deference for its decision not to include these permit applications in its cumulative impact analysis.

Accordingly, the court found the Corps’ failure to discuss the cumulative impact of these developments in the environmental assessment was not arbitrary, capricious, contrary to law, and an abuse of the Corps’ discretion. Id. at *9. See also Grand Canyon Trust v. F.A.A., 290 F. 3d 339, 342 (D.C. Cir. 2002) (stating that an “agency’s … [environmental assessment] must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum.”); Ga. River Network v. United States Army Corps of Eng’rs, 334 F. Supp. 2d 1329, 1339 (N.D. Ga. 2003) (same). Thus, the court did not find that the Corps acted arbitrarily, capriciously, contrary to law or abused its discretion in failing to analyze the nearby mining developments when assessing the cumulative impacts of the Project. Accordingly, the court granted summary judgment for the defendants on the plaintiffs’ NEPA claim.

The court next turned to the second issue: the Clean Water Act. The parties also cross-moved for summary judgment on the plaintiffs’ CWA claim. The plaintiffs contended that the Corps violated the CWA by premising its alternative analysis on an improperly narrow overall project purpose and failing to demonstrate the absence of practicable alternatives to the Hogan Island. The Corps argued that it reasonably balanced both narrowing and expanding considerations to its review of the alternative analysis. The Corps also argued that it considered multiple potential alternative sites throughout southwest Florida and conducted an independent analysis of those sites. 

First, the court agreed with the defendants that the Corps’ determination of the applicant’s overall project purpose was neither arbitrary and capricious, nor contrary to the law. The court also agreed that the Corps adequately considered all potential alternatives to the Project site. The court set forth the law regarding as section 404 permit:

In determining whether to grant a permit under Section 404, the Corps applies the 404 Guidelines, the purpose of which is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In accordance with this, the CWA prohibits “the discharge of any pollutant” including dredge or fill material into waters of the United States unless a permit from the Corps has first been secured. 33 U.S.C. §§ 1311(a), 1344(a).

Id. at *10. Applications for section 404 permits are reviewed under guidelines established by the Environmental Protection Agency Administrator. 33 U.S.C. § 1344(b)(1). These guidelines state in relevant part that:

(1) “no discharge of dredged or fill material shall be permitted which will cause or contribute to significant degradation of the waters of the United States;” (2) “no discharge or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences;” and (3) “no discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.”

40 C.F.R. §§ 230.10 (a),(c), & (d). The 404 Guidelines require the Corps to consider “both individual and cumulative impacts” of the proposed project, as well as practicable alternatives that would have less adverse impact on aquatic systems. Id. §§ 230.6(c) and 10(a).

The Corps’ own regulations, noted the court, require the Corps to conduct a “public interest review” of all permit applications, evaluating “the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” 33 C.F.R. § 320.4(a)(1). The Corps must balance “benefits which reasonably may be expected to accrue from the proposal” against the proposal’s “reasonably foreseeable detriments.” Id. The Corps also considers “the public and private need” for the proposed project and “the practicability of using reasonable alternative locations and methods to accomplish the objective” of the proposal. Id. § 320.4(a)(2)(h).

The Corps will grant a permit application “unless the district engineer determines that [to do so] would be contrary to the public interest of that the…. With the 404 Guidelines or other applicable criteria. Id. § 329.4(a)(1). As it met its obligations under NEPA (discussed above), concluded the court, the Corps fulfilled its obligations under section 404 of the CWA too.

As a starting point for the alternatives analysis, said the court, “the Corps must first determine the ‘overall project purpose.’ ” See, e.g., Nw. Envtl. Def. Ctr. v. Wood, 947 F. Supp. 1371, 1377 (D. Or. 1996); Florida Clean Water Network, Inc. v. Grosskruger, 587 F.Supp.2d 1236, 1243 (M.D. Fla. 2008); Sierra Club v. Flowers, 423 F. Supp. 2d 1273, 1352-54 (S.D. Fla. 2006), vacated on other grounds. The Corps’ determination of a project’s overall project purpose must be upheld unless it is found to be arbitrary and capricious, or contrary to law. Nat’l Wildlife Fed’n v. Whistler, 27 F.3d 1341, 1345-46 (8th Cir. 1994) (upholding determination under arbitrary and capricious standard that overall project purpose could only be accomplished at a specific site). In determining the overall project purpose, it is entirely appropriate for the Corps to consider the applicant’s operational needs, logistics, and legitimate economic concerns. See, e.g.,Friends of Earth v. Hintz, 800 F.2d 822, 833 (9th Cir. 1986); La. Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir. 1985) (per curiam) (“The Corps has a duty to take into account the objectives of the applicant’s project).

In its application, Cemex described the purpose of the Project as “to develop a new limestone and sand quarry (mine) and related facilities on the subject property where the limestone deposits are of sufficient quantity and quality to make the operation economically and commercially viable.”  In the public notice for the permit, the Corps stated the project was for “the construction and operation activities associated with a sand and limestone mining operation to take place in Collier County, Florida.” After reviewing Cemex’s submissions however, the Corps concluded that “the original project purpose did not specify that the applicant desires to extract FDOT-grade limerock, which is not as widely found as commercial grade limestone.” The Corps therefore, revised the project purpose as “to establish a Florida Department of Transportation (FDOT) grade limerock extraction operation to serve the Southwest Florida market.”

The plaintiffs argued that the Corps’ restated project purpose was narrower than what was provided in the permit application and that the project purpose improperly restricted the available alternatives to site. The court rejected this argument, reasoning:

… the Corps identified the project purpose consistent with its regulations, the applicant’s stated needs, logistics, and economic concerns, and properly revised the project purpose to recognize the applicant’s need to mine a product that ensured the economic viability of the project and to recognize that such product could be available outside of Collier County. [ECF No. 44-48 at 9-10]. The Court concludes that these minor revisions were not arbitrary and capricious, nor contrary to law, and are consistent with the 404(b)(1) Guidelines and case and the Corps’ determination is entitled to deference.

Id.

The plaintiffs further argued that the Corps’ EA alternatives analysis simply relied on the statements provided by the applicant and was not independently reviewed. The court found that the plaintiffs had not demonstrated that the Corps’ assessment of practicable alternatives was improper under the deferential standard of review that was appropriate.

The regulations, noted the court, provide that no discharge or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences. See 40 C.F.R. § 230.10(a). A practicable alternative, noted the court, is one that “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). See Fund for Animals, 85 F.3d at 542; La. Wildlife Fed’n., Inc., 761 F.2d at 1047. As with the Corps’ alternatives analysis under NEPA, observed the court, its analysis of practicable alternatives under the CWA was bounded by the fact that there was a limited number of FDOT-grade quality rock throughout Southwest Florida.

The court decided that the Corps had not failed to independently review the statements provided by Cemex concerning the existence of alternatives. There was, said the court, sufficient evidence in the record proving that the Corps conducted a thorough analysis of the alternative sites for the Project. The court noted:

The Corps’ practicable alternatives analysis is not subject to numerical precision, but instead requires a balancing of the applicant’s needs and environmental concerns. Fund for Animals, 85 F.3d at 543-44 (upholding alternatives analysis upon recognition that the Corps had taken into account all the considerations that factor into the alternatives analysis and the need for the project). Pursuant to the Guidelines, the Corps has to “recognize the different levels of effort that should be associated with varying degrees of impact and require or prepare commensurate documentation. The level of documentation should reflect the significance and complexity of the discharge activity.” 40 C.F.R. § 230.6(b). Further, “[a]lthough all requirements in § 230.10 must be met, the compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts on the aquatic ecosystems posed by specific dredged or fill material discharge activities.” Id. § 230.10; U.S. Army Corps of Eng’rs, Regulatory Guidance Letter 93-02, Guidance on Flexibility of the 404(b)(1) Guidelines and Mitigation Banking (Aug. 23, 1993), (describing flexibility afforded by the Guidelines to make regulatory decisions based on the relative severity of the impact of the proposed discharge of fill material on “waters of the United States”).

Id. at *12. The court found that Cemex provided, and the Corps considered, ten alternative sites for analysis, which met basic criteria of being in Southwest Florida near existing manufacturing facilities, containing FDOT-Quality limerock in sufficient volume and depth, and in a region with demand for aggregate. The Corps also considered whether alternative site designs could limit the Project’s impact on jurisdictional waters. The Corps undertook an independent analysis of these alternatives before finding the Hogan Island site to be the practicable alternatives to the other site. The Clean Water Act, concluded the court, requires nothing more. See id; citing Water Works & Sewer Bd. Of Birmingham v. U.S. Army Corps of Eng’rs, 983 F. Supp. 1052, 1077 (N.D. Ala. 1997), aff’d 163 F.3d 98 (11th Cir. 1998) (upholding Corps’ analysis of practicable alternatives).

The court distinguished Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254, 1265, 1266 (S.D. Fla. 2009), in which the court found no indication that the Corps independently evaluated alternatives. Id. at 1266 (finding that “[n]ot a single alternative location [was] identified by name in the [Record of Decision]”). By contrast, in Williams, the Corps clarified the project purpose, identified offsite alternative locations by name, and described, summarized, and compared those offsite alternatives to the criteria for evaluating alternatives. The Corps required additional information from CEMEX on rock encountered by CEMEX on other properties in the vicinity and on the irregular boundary of the proposed site. Overall, in Williams, said the court, the Corps properly concluded that the site was the least environmentally damaging practicable alternative, and that decision, said the court, was entitled to deference. Id. at 10-13. There was no indication, said the court, that this decision was arbitrary, capricious, contrary to law, or an abuse of discretion. Thus, the court found that the Corps had not violated the CWA.

The final issue was the Endangered Species Act. The plaintiffs argued that the Defendants had violated the ESA. The Supreme Court, noted the court, has characterized the ESA as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. 153, 180 (1978). Its stated purpose is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of [certain listed] … treaties and conventions….” 16 U.S.C. § 1531(b). The Supreme Court has recognized that the legislative history of the ESA “reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species.” Hill, 437 U.S. at 185. In Williams, the plaintiffs argued that the defendants had violated the ESA by preparing a flawed biological opinion and relying on it to issue the permit. The court set forth he applicable law:

Section 7 of the ESA, provides that the Corps must consult with the FWS to “insure that any action authorized funded, or carried out by” the Corps “is not likely to jeopardize the continued existence of any endangered species.” 16 U.S.C. § 1536(a)(2). Action agencies, such as the Corps here, must consult with either the FWS (for land-based and non-anadromous species) or, National Marine Fisheries Service (“NMFS”) (for marine and anadromous species) to determine the likely effects of their proposed actions on ESA-listed species. 16 U.S.C. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b). Section 7 applies to “actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03.

The first step in the consultation process is for the action agency to independently determine whether its proposed action “may affect” an endangered or threatened species or that species’ critical habitat. Id. § 402.14(a). If so, the agency must initiate either informal or formal consultation with FWS. Id. Informal consultation is an “optional process that includes all discussions, correspondence, etc.” between the two agencies and is “designed to assist the Federal agency in determining whether formal consultation or a conference is required.” Id. § 402.13(a). If, upon completion of informal consultation, the two agencies agree in writing that the proposed action “is not likely to adversely affect” any endangered or threatened species, no further action is necessary. 50 C.F.R. §§ 402.13(a), 402.14(b)(1). If either agency determines that the proposed action is “likely to adversely affect” a listed species or habitat, formal consultation is required. See id. § 402.14. Formal consultation entails the consulting agency preparing a “biological opinion” stating whether the proposed action “is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” Id. § 402.14(g)(4); Fla. Key Deer v. Paulison, 522 F.3d 1133, 1138 (11th Cir. 2008). If the consulting agency concludes that the proposed agency action would place the listed species in jeopardy or destroy or adversely modify its critical habitat, “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [section 7(a)(2)] and can be taken by the Federal agency … in implementing the agency action.” 16 U.S.C. § 1536(b)(3)(A). If an action as proposed (or modified by a reasonable and prudent alternative) is not likely to jeopardize the species, but will nonetheless result in the “incidental take” of members of the species, the consulting agency provides an “incidental take statement” (“ITS”) identifying the impact of such taking and specifying reasonable and prudent measures (“RPMs”) “necessary or appropriate to minimize such impact” and terms and conditions to implement those measures. 16 U.S.C. § 1536(b)(4)(h); 50 C.F.R. § 402.14(i)(1)(i-v).

Id. at *13.  If the action agency implements the action as proposed and complies with the terms and conditions of the incidental take statement, the specified level of take is exempt from ESA Section 9’s “take” prohibition. 16 U.S.C. § 1536(o)(2). After consultation is completed, the action agency may need to reinitiate formal consultation:

(a) If the amount or extent of taking specified in the incidental take statement is exceeded; (b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (d) If a new species is listed or critical habitat designated that may be affected by the identified action.

50 C.F.R. § 402.16. During the pendency of consultation, noted the court, ESA Section 7(d) provides that action agencies may proceed with their action as long as it does not make “any irreversible or irretrievable commitment of resources” which would “foreclose[e]the formulation or implementation of any reasonable and prudent alternative measures” that might be developed during the consultation. 16 U.S.C. § 1536(d).

Furthermore:

Section 9 of the ESA prohibits the “taking” of any endangered or threatened species. 16 U.S.C. § 1538(a)(1)(B). “Take” as defined by the ESA means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct.” 16 U.S.C. § 1532(19). The ESA’s prohibition on taking species applies to all “persons,” including individuals, corporations, and federal or state agencies. 16 U.S.C. § 1532(13). The ESA provides authority for both civil and criminal penalties for violations. As noted above, take incidental to federal actions can be exempted from liability as part of the consultation process in an “incidental take statement” issued with a biological opinion. 16 U.S.C. § 1536(b)(4). Under Section 7(o) of the ESA, “any taking that is in compliance with the terms and conditions specified in a written statement provided under subsection (b)(4)(iv) of this section [an incidental take statement] shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o)(2). As relevant here, an incidental take statement must specify “those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize” the impact of authorized incidental take. 16 U.S.C. § 1536(b)(4)(ii); 50 C.F.R. § 402.14(i)(1)(ii). Section 7(o), the safe harbor provision, applies where incidental take occurs “in compliance with the terms and conditions” provided under 16 U.S.C. § 1536(b)(4)(C)(iv). There is no reference in ESA Section 7(o) — or in subsection (b)(4)(C)(iv) which it cross-references — to subprovision (b)(4)(C)(i), which requires the Service to “specify the impact of such incidental taking on the species”; there is only reference in subsection (b)(4)(C)(iv) to subsections (ii) and (iii).

Id. The plaintiffs in Williams argued that the defendants violated the ESA because the FWS prepared an arbitrary and capricious biological opinion, which the Corps then relied on in issuing the permit at issue. Additionally, the plaintiffs argued that the FWS had violated section 7 of the ESA by failing to evaluate the effects of the action on listed species and failing to consider the cumulative effects of development and mining on Florida panthers. The court again rejected the plaintiffs’ argument, finding that the FWS’ biological opinion was in compliance with ESA as it reviewed all relevant information, evaluated the current status of listed species and evaluated the effects of the action and cumulative effects on those listed species. The court also found that the Corps’ reliance on this biological opinion was not arbitrary and capricious.

The plaintiffs argued that the FWS prepared an inadequate biological opinion because in preparing this opinion the FWS (1) failed to adequately consider cumulative effects of all reasonably foreseeable mining and development impacts, (2) failed to make a rational connection between facts found in the record and the decision that the project would not jeopardize the Florida panther, wood stork, caracara or Eastern Indigo snake, (3) failed to specify the level of incidental take anticipate by the project or provide an adequate trigger to reinitiate consultation, and (4) failed to prepare an adequate Reasonable and Prudent measures to minimize the incidental take of panthers at the project site. After careful consideration, the court found that the FWS’ biological opinion was not arbitrary and capricious as it undertook a comprehensive analysis and study of the direct and indirect impacts to the listed species. The court also found that the Corps analyzed the risks to the species and its reliance on the biological opinion was well warranted.

First, the plaintiffs argued that the FWS’ biological opinion was arbitrary and capricious because it did not analyze the effects of the action and the cumulative effects on listed species in relation to the environmental baseline. The court noted that the Code of Federal Regulations states that 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 section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. 50 C.F.R. § 402.02.

The court found that the FWS’ discussion of the environmental baseline adequately discussed the effects on potential habitat for both the panther and the wood stork. The record before the court specified the Project’s site as some wetland areas with 8.11 acres of short-hydroperiod wetlands suitable for wood stork foraging. Based on the record provided by the defendants, there had been a total of 15 radio-collared male and female panthers recorded within a five-mile radius of the project site from February 1981 through June 29, 2011. In addition, the record confirmed that the project site was not presently in a natural condition. The project site had been farmed for over 40 years. Id. The court further noted:

Onsite wetland areas that serve as potential foraging habitat for the wood stork primarily consist of man-made ditches. Id. Due to the ongoing agricultural activities, FWS concluded that wood stork usage of the project site at this time is “minimal.” Id. In addition, FWS analyzed an action area much larger than the project site and determined that the action area encompasses all lands within a 25-mile radius of the Hogan Quarry project site. Id. For the wood stork, FWS determined that the action area encompasses 1,956.83 square miles of Collier, Lee, and Hendry Counties. FWS 2616. This area corresponds to the CFA of four wood stork colonies located within 18.6 miles of the project site.

The required scope of analysis to be employed during the consultation process, observed the court, was defined in joint regulations promulgated by FWS and NMFS in 1986. Interagency Cooperation – Endangered Species Act of 1973, as Amended; Final Rule, 51 Fed. Reg. 19,926, 19,932 (June 3, 1986); 50 C.F.R. pt. 402. During consultation, an action agency is required to consider “the effects of the action as a whole.” 50 C.F.R. § 402.14(c). The consultation regulations define “effects of the action” as including the direct and indirect effects of the action. “Indirect effects” are defined as “those that are caused by the proposed action and are later in time, but still are reasonably certain to occur.” Id. § 402.02.

The court found that in its biological opinion FWS properly assessed the potential effects of the Hogan Island Quarry in relation to the environmental baseline. FWS concluded that the direct effects of the permitted action on the panther include temporary habitat loss and fragmentation during development of the mine. FWS also determined that the project could indirectly affect the panther by increasing traffic in the vicinity and thereby potentially contributing to the mortality of panthers in the action area. To assess the potential effects of the Hogan Island Quarry on panthers, FWS used a Habitat Assessment Methodology to determine the habitat value of the lands that would be subject to direct and indirect project impacts. Further:

Using this methodology, FWS determined that Cemex should compensate for 8,365 Primary Zone equivalent Panther Habitat Units (“PHUs”). Id. at 22. FWS determined that the over 1,200 acres provided by on-site and off-site preserves will provide a total of 8,441 PHUs. Therefore, FWS concluded that the proposed preserve and compensation plan benefits the survival and recovery of the Florida panther as referenced in the most recent Panther Recovery Plan. Id. FWS also determined that the project will result in the loss of approximately 55 acres of wetlands that include 8.11 acres of short-hydroperiod wetlands that provide suitable habitat for the wood stork. [ECF No. 45-33 at 5]. FWS calculated that the proposed development will result in the loss of 77.50 kg of prey base biomass, of which 4.42 kg are associated with the shorth-ydroperiod wetlands and 73.17 kg are associated with long-hydroperiod wetlands. Id.According to the record, FWS also considered the potential indirect effects of the Hogan Island project in terms of harassment of wood storks during mine operations. Id. at 6.

In so doing, said the court, FWS determined that the effects of the anticipated habitat loss on wood storks would be offset by the establishment of littoral wetlands on site and the establishment of an off-site wetlands preserve adjacent to existing public lands. Id. FWS determined that the restoration actions proposed for the preserve lands would provide an increase of 100.57 kg of biomass in short-hydroperiod wetlands. Id. Thus, FWS concluded that the proposed restoration actions would provide a net increase in availability of biomass of short-hydroperiod wetlands. Id. In sum, said the court, FWS rendered its “not likely to jeopardize” determination for the panther and wood stork, respectively, in light of existing (disturbed) habitat conditions on and around the project site (environmental baseline) and the fact that proposed on-site and off-site preserves would provide an overall increase in habitat value for both species.

The court concluded therefore, that it was not accurate to state that the FWS “failed to take into account the effect of the action on listed species”. Under the APA and the Chevron deference standard that was the law of the land at the time, the court gives substantial deference to the FWS’ decisions as to “what evidence to find credible” and “drafting decisions like how much discussion to include on each topic, and how much data is necessary to fully address each issue,” finding such decisions inadequate only where they are arbitrary, capricious, or an abuse of discretion. Sierra Club v. Van Antwerp, 526 F. 3d 1353, 1361 (11th Cir. 2008). The Court was not convinced that the FWS failed to include any specific information and thus, the court found that the analysis of the environmental baseline in the biological opinion was not arbitrary and capricious.

Next, the plaintiffs argued that the biological opinion was arbitrary and capricious because “the FWS failed to analyze the impacts of the state of Florida Department of Environmental Protection approved 13,000 acres of rock mines in the vicinity or the 45,000 acres of residential and commercial development approved under the Eastern Collier Habitat Conservation Plan.” [ECF No. 31-1 at 39]. The plaintiffs also argued that the FWS “failed to assess the fact that the project site has been identified as a Town Node in the applicant’s County buildout Conceptual plan or the recognition by the FDEP that the residual mining lake front properties would be owned by multiple property owners.” Id.

The court explained cumulative effects:

Cumulative effects “are those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.” 50 C.F.R. § 402.02. The Court finds it was not arbitrary, capricious, contrary to law, or an abuse of discretion for the FWS to not analyze the impact of the Eastern Collier Habitat Conservation Plan. The Eastern Collier Habitat Conservation Plan was nothing but a proposed plan and there was no evidence indicating that FWS ever approved it. Nor was the plan deemed reasonably likely to occur. Under the ESA regulatory approach, future federal actions (such as CWA permits that may be granted based on pending applications) are not included in the cumulative effects analysis of a biological opinion, because they will be subjected to consultation when they occur. See 51 Fed. Reg. at 19,933 (preamble to FWS consultation regulations), cited in Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1269 (11th Cir. 2009).

Id. at *16. Additionally, said the court, the FWS did not abuse its discretion when it did not analyze the potential development of Town Node and potential ownership of residual mining lake front properties that may occur 25 or more years in the future and were not reasonably certain to occur for purposes of inclusion in FWS’ cumulative effects analysis pursuant to 50 C.F.R. § 402.02.

In the biological opinion, noted the court, the FWS analyzed specific state environmental resource permits that it determined were likely to result in development without Federal review. Given this evidence in the record, said the court, it was not arbitrary, capricious or an abuse of discretion for the FWS to fail to discuss other possible future state and private actions in the biological opinion. Moreover, said the court, this was an area clearly within the technical expertise of the agency to which the court felt it should defer under Chevron. See id.; Fla. Keys Citizens Coalition, Inc., 374 F. Supp. 2d at 1162 (where the Court found it proper to defer “to the agency’s expertise and discretion.”).

The plaintiffs also argued that the FWS’ biological opinion failed to adequately address the cumulative effects on the Florida panthers. Specifically, the plaintiffs argued that the biological opinion “lacks the necessary analysis, data, and other relevant information” to support that the Project will not jeopardize Florida panthers.

When it rendered this opinion, observed the court, the FWS recognized the project would potentially impact Florida panthers but believed the provisions of the Incidental Take Statement would avoid adverse effects on the panthers. But the court again rejected the plaintiffs’ argument, concluding that the overall regulatory scheme is focused on process, not conclusions. Having completed the formal ESA consultation process, and obtained an incidental take statement with terms and conditions to minimize the impact of the Project on ESA resources, concluded the court, the Corps lawfully proceeded with the Project in reliance on the FWS’ biological opinion. Id.; citing Fund for Animals, 85 F.3d at 548 (“Likewise, we hold that the Plaintiffs have failed to show that the Corps acted arbitrarily and capriciously by relying on these Opinions when consultation with the FWS is exactly what is required by the relevant statutory scheme.”)

In Fund for Animals, noted the court, the plaintiffs challenged FWS’ biological opinions as well as the action agency’s reliance upon the biological opinions by claiming that FWS’ “no jeopardy” determination was erroneous, because it endorsed development within a species habitat area that FWS had previously identified in a recovery plan, pursuant to Section 4 of the ESA, 16 U.S.C. § 1533(f). Id. at 547. The Eleventh Circuit held that FWS’ discretion in issuing a biological opinion is not constrained according to whether a project is located within recognized species habitat or whether FWS had previously identified the habitat as part of recovery planning documents pursuant to Section 4 of the ESA, reasoning:

There would be absolutely no point to the consultation and preparation of a biological opinion if the [FWS’] opinion were predetermined based upon whether proposed project lands fell within the borders of properties discussed in one of any number of recovery plan documents.

Id. The court concluded that FWS had identified reasonable justifications for issuing its “no jeopardy” biological opinion. Id. The court further held that the Corps reasonably relied upon FWS’ biological opinion: “[W]e hold that the Plaintiffs have failed to show that the Corps acted arbitrarily and capriciously by relying on these Opinions when consultation with the [FWS] is exactly what is required by the relevant statutory scheme.” Id. at 548.

Similarly, in Williams, concluded the court, FWS appropriately determined that the project was not likely to jeopardize the continued existence of the Florida panther and the Corps was entitled to rely upon such expert determination in complying with the ESA. The court reasoned:

First, FWS concluded that there will be no direct take of panthers in the form of mortality or injury. Although 967.65 acres of lands that provide some habitat for the benefit of the Florida panther will be lost, FWS reasoned that the proposed compensation lands will benefit the survival and recovery of the species. FWS enumerated how the planned habitat protection and compensation will compensate for both the quality, function, and value of the lost habitat. Using its Panther Assessment Methodology, FWS determined that 967.65 acres of lands that will be impacted by the Hogan Island Quarry would result in a loss of 3,345 PHUs, whereas the 1,219.1 acres provided by on-site and off-site preserves will provide a total of 8,441 PHUs.

Id. (emphasis added). The court restated that the applicable standard of review is “exceedingly deferential” to the expert determinations of FWS, including determinations as to appropriate measures to protect endangered species. Id.; Fund for Animals, 85 F.3d at 541. See also id. at 545 (noting that challenged Corps permit, while facilitating development within species habitat, would otherwise further other conservation benefits through a mitigation plan that provided for creation, restoration, and enhancement of adjacent wetland areas); Florida Keys Citizens Coal. v. U.S. Army Corps of Eng’rs, 374 F. Supp. 2d 1116, 1162 (S.D. Fla. 2005); Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 955 (9th Cir. 2003)(FWS properly relied upon mitigation in conservation agreement in arriving at a “no jeopardy” conclusion); Hawksbill Sea Turtle v. FEMA, 11 F. Supp. 2d 529, 548 (D. V.I. 1998) (upholding informal consultation where FWS reasonably determined mitigation plan would avoid adverse effects), remanded on mootness grounds, 215 F.3d 1314 (3rd Cir. 2000).

The Williams Court concluded, therefore, that the plaintiffs’ argument that the FWS failed to make a rational connection between the facts in the record and its no jeopardy conclusion was without merit.

Next, the plaintiffs argued that the ITS was flawed because FWS did not conclude that the “project would result in the take of a significant number” of panthers, wood storks, crested caracara and eastern indigo snakes. The plaintiffs also argued that FWS failed to specify the amount or extent of the take, provide an explanation for why take is not estimated, or provide a viable surrogate. The court disagreed, concluding that the ITS complied with ESA. The court reasoned:

Absent proof that the Corps failed to comply with the enumerated terms and conditions of the incidental take statement included with the biological opinion, “any taking” incidental to the Project and in compliance with the associated terms and conditions is not prohibited by Section 9 of the ESA. 16 U.S.C. § 1536(o). As stated previously, Section 9 of the ESA makes it unlawful for any person to “take” an endangered species. 16 U.S.C. § 1538(a)(1)(B). However, if during consultation FWS determines that the action is not likely to jeopardize the species, but is reasonably certain to result in the incidental take of members of the species, FWS provides an ITS along with the biological opinion. Id. § 1536(b)(4). Under ESA Section 7(b)(4)(i), the ITS must “specif[y] the impact of such incidental taking on the species,” that is, set a numerical estimate of, or equivalent limit to the anticipated level of take. Pursuant to 7(b)(4)(C)(ii), the Secretary articulates “those reasonable and prudent measures that [FWS] considers necessary or appropriate to minimize such impact.” 16 U.S.C. § 1536(b)(4)(ii). Further, the ITS must “set[ ] forth the terms and conditions (including but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the [reasonable and prudent measures] specified under clauses (ii) and (iii) …” 16 U.S.C. § 1536(b)(4)(iv) (emphasis added).

Id. at *18. Section 7(o)(2) of the ESA, recognized the court, provides that “any taking that is in compliance with the terms and conditions specified in a written [incidental take] statement … shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o)(2). Thus, said the court, an agency that complies with the terms and conditions of the ITS cannot be charged with a violation of the “take” prohibition in ESA Section 9 if the agency happens to “take” a member of the species. See Bennett v. Spear, 520 U.S. 154, 170 (1997)(because of Section 7(o) “the Biological Opinion’s Incidental Take Statement constitutes a permit authorizing the action agency to ‘take’ the endangered or threatened species so long as it respects the Service’s ‘terms and conditions.’ ”). As explained in Center for Marine Conservation v. Brown, “[u]nder section 1536(o), takings occurring in compliance with the terms and conditions of the reasonable and prudent measures set forth in an incidental take statement are not prohibited. Section 1536(o), said the court, does not provide that any taking in excess of the level set in an incidental take statement is prohibited.” 917 F. Supp. 1128, 1149 (S.D. Tex. 1996).

The plaintiffs argued that the ITS was invalid because it failed to specify the amount or extent of incidental take. The court again rejected the plaintiffs’ argument, concluding that the FWS is not required to provide an exact number of species that may be incidentally taken by the proposed activity, where the take cannot be quantified numerically. See, e.g., Pac. Nw. Generating Coop. v. Brown, 822 F. Supp. 1479, 1510 (D. Or. 1993) (“Plaintiffs’ claim that the incidental take statements are facially invalid for failing to identify specific impacts (i.e. an anticipated number of listed species to be harvested) is belied by clear legislative history which demonstrates that Congress fully anticipated that there would be occasions when impacts would have to be estimated.”), aff’d 38 F.3d 1058 (9th Cir. 1994). The court noted:

In its two-page, single space discussion under “Amount or Extent of Take, the ITS specified the amount or extent of authorized incidental take — setting a zero limit on direct injury or mortality. The ITS expressly states that the Service does not anticipate or authorize any take in the form of direct injury or mortality. See Id. (“Service does not anticipate … direct mortality or injury of any Florida panthers”). Instead, the ITS anticipates and authorizes only “indirect take in the form of harassment and harm,” which FWS expects to result from the “cumulative” impact of this and other projects, leading to potential increases in traffic and intra-species aggression within the action area. Id.

Id. The court noted that FWS determined that the loss of 967.65 acres of “panther habitat” (a conservative characterization in light of the current use of the property as an active tomato farming operation) is “equivalent to 3.3 percent of a female panther’s home range (29,056 acres) and 1.5 percent of a male panther’s home range (62,528 acres).” Id. FWS explained that indirect take that results from the cumulative impact of this project and other projects in the action area is, naturally, “difficult to quantify or to tie to any specific project.” Id. Based on the loss of 967.65 acres of panther habitat, FWS accounted for incidental take of panthers in the form of harassment and Harm that would occur as a result of potential increases in traffic and intraspecific aggression within the 25-mile radius action area. Id. FWS explained why it was impractical to set a number for the panther that may be subject to indirect take within the 25-mile radius action area. The biological opinion specified that, as of June 29, 2011, there were a total of at least 31 known radio-collared panthers within the action area. However, said the court, only a subset of the population is radio-collared at any time. Id. at 16. According to the experts:

Additional panthers may be detected in a given area through physical evidence such as scat or tracks, but it is not feasible to count the exact number of panthers responsible for creating such physical evidence because panthers are wide ranging and secretive. Because panthers are so wide ranging and the lands on the project site provide limited value to the Florida panther and panther prey species, FWS concluded that direct incidental take of panthers would be “difficult to detect and quantify. Under the circumstances, FWS found it to be impractical to describe the number of panthers that would potentially be harassed in numeric terms or with further specificity. Miccosukee Tribe, 566 F.3d at 1275 (“We apply instead the rule that specific population data is required unless it is impractical.”) (citation omitted).

The court concluded that:

An action such as the Corps has latitude to structure its action to maximize the fulfillment of other competing duties and goals after completing consultation, as the Corps did when it obtained the FWS’ biological opinion and ITS. So long as the action avoids jeopardy, the Corps is not obligated to implement its action in the manner that Plaintiffs (or even FWS) might prefer. See Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 523 (9th Cir. 1998) (“The Secretary was not even required to pick the best alternative or the one that would most effectively protect the [listed species] from jeopardy.”); cited in Miccosukee Tribe of Indians v. United States, 528 F. Supp.2d 1317, 1328 n.10 (S.D. Fla. 2007) (“FWS maintains that [action] will maintain [species] in the short term, which is all that is required.”), aff’d in part, rev’d in part on other grounds, 566 F.3d 1257 (11th Cir. 2008). The preamble to the ESA consultation regulations recognizes that, despite the significant role afforded to the consulting agency in rendering biological opinions, the action agency “has the primary responsibility for implementing section 7’s substantive command.” 51 Fed. Reg. 19,926, 19,928 (June 3, 1986). 28

Id. at 19. As such, said the court, the ultimate decision whether to proceed with the proposed action is committed to the discretion of the action agency. Id.; National Wildlife Fed’n v. Coleman, 529 F.2d 359, 371 (5th Cir. 1976) (“Section 7 does not give the Department of Interior a veto over the actions of other federal agencies, provided that the required consultation has occurred.”); Sierra Club v. Froehlke, 534 F.2d 1289, 1303 (8th Cir. 1976) (“Should a difference of opinion arise as to a given project, the responsibility for decision after consultation is not vested in the Secretary but in the agency involved.”) (citation omitted).

Accordingly, the court recognized that the Corps is owed deference concerning its decision to proceed with an action after ESA consultation, in reliance on its own scientific expertise, notwithstanding disagreement among technical experts. See Nat. Res. Def Council v. U.S. Army Corps of Eng’rs, No. 99CV2899, 2001 WL 1491580, at *9 (S.D. Fla. June 28, 2001) (“Plaintiffs here have not demonstrated that the Corps failed to consider the relevant factors or made a clear error of judgment.”). See also Baltimore Gas, 462 U.S. at 103 (holding that a court “must generally be at its most deferential” when examining agency predictions “within its area of special expertise”).

Based on these legal authorities, concluded the court, it was reasonable for the Corps to grant Cemex the permit for the Project after obtaining the advice of FWS. The court reasoned:

Here, as in Natural Resources Defense Council, Plaintiffs have not demonstrated that the Corps erred in relying on their own expert in determining how to carry out an action after obtaining a biological opinion from FWS. 2001 WL 1491580, at *9 (“On judicial review, the role of the Court is not to attempt to become a tie-breaking technical expert.”); Sw. Ctr. for Biological Diversity, 100 F.3d at 1449 (“While the administrative record reflects disagreement in the opinions and recommendations of various federal agencies … the [action agency] was entitled to rely on the opinions and recommendations of its own experts.”) (citation omitted). After reinitiating ESA consultation, the Corps continued with issuing the permit in reliance on the FWS’ biological opinion. Accordingly, the Corps has met both the substantive and procedural obligations of Section 7.

Furthermore, said the court, ESA Section 7(a)(1) provides in relevant part that “[a]ll other Federal agencies shall, in consultation with and with the assistance of the Secretary [i.e., WFS], utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title.” 16 U.S.C. § 1536(a)(1). In Florida Key Deer v. Paulison, the Eleventh Circuit acknowledged that the action agency is afforded “discretion in ascertaining how best to fulfill the mandate to conserve under section 7(a)(1).” 522 F.3d at 1146 (quoting Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d at 1410, 1418 (9th Cir. 1990)). The Key Deer court concluded that the conservation measures at issue were insufficient because they amounted to “total inaction.” Id. at 1147.

In Williams, by contrast, concluded the court, the FWS’ biological opinion incorporated the terms of the ITS as conditions of the Corps permit. The biological opinion also included the reasonable and prudent measures to minimize the impacts of authorized incidental take. Thus, the court found that the Corps did comply with section 7(a)(1) of the ESA

For all of these reasons, the Williams court held that the government complied with the NEPA, the CWA, the APA, and the ESA. With regard to the APA and the NEPA, the court found that the Corps took a “hard look” at the cumulative impacts of Hogan Island and nearby developments in its environmental assessment. The court further found the FWS’ biological Opinion and the Corps’ environmental assessment were in compliance with federal statutes. The court also held that the section 404(b) permit issued by the Corps for the Hogan Island Quarry Project was valid. Accordingly, the court granted the government’s cross-motion for summary judgment.