Full opinion text
MEMORANDUM OF OPINION AND ORDER LEVI, District Judge. Plaintiffs challenge the United States Fish and Wildlife Service’s issuance of an incidental take permit to allow development in the Natomas Basin, a 53,000 acre tract of largely undeveloped land stretching to the North of the City of Sacramento. The Natomas Basin contains habitat of the Giant Garter Snake, a threatened species under the federal Endangered Species Act, and the Swainson’s hawk, a threatened species under the California Endangered Species Act. The parties now bring cross-motions for summary judgment. I. Background and Procedural History A The Natomas Basin The Natomas Basin (“Basin”) is a low-lying region of predominately agricultural lands in the Sacramento Valley consisting of approximately 53,000 acres. The Basin is part of a larger flood plain known as the American Basin, and is situated at the northern end of the City of Sacramento (“City”). Approximately 22% of the area of the Basin is within the City limits, with the remainder to the north, in the jurisdiction of Sacramento and Sutter Counties. Because the area was subject until recently to frequent flooding, the Basin has remained relatively immune from development despite its proximity to a growing metropolitan region. The Basin provides habitat or potential habitat for a number of species listed as endangered or threatened under federal or state law. (See Administrative Record (hereinafter “AR”) 6:886 at 48-50.) Of the 11,387 acres of the Basin that lie within the City, approximately 30% has been developed, while roughly 55% is in crop land and 15% is vacant or in its natural state. (See AR 10:1657 at III — 5.) The land containing natural vegetation is primarily located along irrigation canals, drainage ditches, pastures, and uncultivated fields. (See Def.’s Mem. P. & A. at 11.) In 1986, heavy spring rains caused significant flood damage in the Sacramento area. In response, the Army Corps of Engineers (“Corps”) undertook a study of proposals to improve flood control measures. This study culminated in the Corps’ issuance, in 1991, of the “American River Watershed Investigation Feasibility Report” (“Feasibility Report”). The Feasibility Report proposed to provide 200 year flood protection through construction of the Auburn Dam and a series of levee improvements. (See Def.’s Mem. P. & A. at 12.) The United States Fish and Wildlife Service (“the Service”) reacted, to the Corps’ proposal with concern, noting the importance of the Basin to waterfowl using the Pacific Flyway for migration and to certain native species listed as endangered or threatened under federal or state law. (See AR 6:886.) The Service issued a report in 1991, the “American River Watershed Investigation, Natomas Area,” (AR 6:886) (“1991 Report”), that examined the “indirect impacts” from development likely to result from flood control in the Basin. The 1991 Report considered a 41,000 acre subarea of the Basin that provided upland or wetland habitat and concluded that nearly the entire area — 39,200 acres— would be developed if a 200 year flood control plan were implemented. (See id. at 60-65 & Tbls. 5-7.) The 1991 Report found that the biological effects of this degree of urbanization in the Basin would be a dramatic loss of wildlife habitat. (Id. at 64.) The 1991 Report contained an extensive discussion of potential means of mitigating for the urbanization that would follow upon flood control. The 1991 Report recommended that an area totaling 17,650 acres in the Natomas Area be acquired and managed as a wetland/upland complex, to offset the expected loss of 22,717 acres of such habitat. Excluding acquisition costs, the 1991 Report anticipated the nonrecurring cost for development of acquired lands into habitat at approximately $171,-675,000 — over $9700 per acre. In addition, the Report estimated annual management costs of $8,825,000, or $500 per acre. In 1991, the Sacramento Area Flood Control Authority (“SAFCA”) began the process of applying for an incidental take permit (“ITP”) under § 10 of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq. The ITP application was intended to permit implementation of the Corps’ proposed 200-year flood control project, consistent with the requirements of the federal and state statutes protecting endangered species. In 1992, however, after Congress discontinued funding for study of the proposed Auburn Dam project — an integral part of the Corps’ 200-year flood protection plan — SAFCA redirected its energies toward a more modest flood control project, designed to achieve 100-year flood protection in the Natomas area. In order to implement the flood control project, SAFCA applied to the Corps for a permit under § 404 of the Clean Water Act, 33 U.S.C. §§ 1251 et seq., to permit the discharge of fill material into certain wetlands and waterways in the basin. In reviewing this request, the Corps considered the direct effects of the proposed discharges, but initially declined to consider the indirect effects of the flood control project, namely, the urbanization likely to ensue. However, as a result of the Fish and Wildlife Service’s insistence on this issue, the Corps agreed, in November 1993, to require SAFCA to address the urban development that would occur as a result of the requested § 404 permit. In 1993, the Service listed the Giant Garter Snake (“GGS”) as a threatened species under the ESA. The listing notice identified 13 distinct populations of the GGS, of which the American Basin population was one of the largest. See 58 Fed. Reg. 54053 (Oct. 20, 1993). The Natomas Basin population is a subpopulation of the American Basin population of the GGS. After the listing of the GGS, “interest renewed ... in developing a habitat conservation plan.” (Def.’s Mem. P. & A. at 15.) In January 1994, the Natomas Basin Habitat Conservation Plan Working Group (‘Working Group”) was formed, and began development of a habitat conservation plan (“Plan,” or “HCP”), as required to qualify for an ITP. The Working Group was comprised of “representatives of land owners of a large proportion of the affected area.” (AR 23:03931.) In March 1994, the Service issued a Biological Opinion (“1994 Biological Opinion”) regarding SAFCA’s proposed flood control project. (See AR 1:227.) The 1994 Biological Opinion noted that “nine of the twelve other extant populations [of the GGS are] on the verge of extinction,” and expressed the Service’s opinion that, given “the severe, declining trends in habitat suitability/availability and population levels throughout 75 percent of the range of the species,” the American Basin population of GGS was “vital to the survival of the species.” (Id. at 231.) In addition, the 1994 Biological Opinion noted that, absent measures to mitigate the expected urbanization of existing GGS habitat, “this flood control project and consequent urban development could extirpate the giant garter snake from the American Basin.” (Id. at 230.) The 1994 Biological Opinion nevertheless concluded that the project would not likely “reduce appreciably the likelihood of the survival and recovery of the giant garter snake by adversely affecting reproduction, numbers and distribution of the species.” (Id. at 231.) This conclusion was premised on five conditions proposed by the Corps as limitations on any permit to be issued to SAFCA: (i) preconstruction surveys for the GGS; (ifi'the use of measures to minimize incidental take; (iii) compensation for any direct losses of GGS habitat; (iv) completion of a habitat management plan that ensures the conservation needs of the GGS; and (v) execution of an agreement by the City, Sacramento and Sutter Counties, and the Service, to guarantee implementation of the plan. (See id. at 228, 231.) Most important among these conditions were numbers (iv) and (v), which the 1994 Biological Opinion characterized as a special permit condition that would establish a multispecies habitat conservation plan for the 55,000-aere lower American Basin, scheduled for completion prior to the start of construction of the proposed pumping station. An element of this habitat management plan would include an agreement among local governments and the Service that guarantees the conservation needs of the giant garter snake. (Id. at 231.) In May 1994, landowners in the Working Group responded to the 1994 Biological Opinion by commissioning a team of consultants to begin preparing a draft HCP and an accompanying application for an ITP under ESA § 10. SAFCA subsequently released a draft HCP for public comment in March 1995. (See AR 24:4190.) Extensive public comments were received, and the Working Group released summaries of the comments, including explanations of which comments were being addressed by revision of relevant documents. The Service also provided comments in response to the 1995 draft HCP, and expressed concern over certain provisions of the Plan. The Service did, however, accept certain significant provisions of the Plan, including its proposed mitigation ratio of 0.5:1, whereby one-half acre of land would be acquired and conserved for each acre that was developed, and the Plan’s estimate that only 17,500 acres in the basin would be developed over the 50 year life of the Plan. In October 1995, and again in June 1996, SAFCA published revised HCPs, incorporating some of the comments rendered on earlier drafts. (See AR 21:3680; 19:3440.) Subsequently, the City of Sacramento took over for SAFCA as the prospective per-mittee, and in December 1996, the City submitted its application for an ITP, consisting of a draft HCP, draft Implementation Agreement and other supporting documents. Upon receipt of this application, the Service prepared a draft Environmental Assessment (“EA”), and the permit package was released for public comment in January 1997. See 62 Fed.Reg. 2174 (Jan. 15, 1997). The Service considered the extensive public comments it received and proposed changes to the Plan and the Implementation Agreement based on the comments. (See AR 39:6347-6355.) In November 1997, the City issued another amended version of the permit application, including a revised HCP and a revised Implementation Agreement. (See AR 10:1657.) - The Service reviewed the revised documents, and on November 21, 1997, requested minor changes aimed at harmonizing the Implementation Agreement with the HCP and otherwise clarifying the intent of the parties. (See AR 9:1640, 1641.) In December, the Service prepared and released a new Environmental Assessment (“EA”), (see AR 9:1638), and on December 8, 1997, the City executed the Implementation Agreement. On December 17, 1997, the Fish and Wildlife Service issued a new Biological Opinion (“1997 Biological Opinion”) which concluded that issuance of the ITP would not jeopardize the continued existence of any covered species. (See AR 9:1563.) Finally, on December 31, 1997, the Service executed the Implementation Agreement and issued the permit to the City. (See AR 9:1508.) On the same day, the Service issued Findings and Recommendations regarding its decision to issue the permit, which included a response to comments and a summary of changes made in the final version of the HCP. (See AR 9:1513 at 1530-38.) B. The Final HCP The Natomas Basin HCP is intended “to promote biological conservation along with economic development and the continuation of agriculture within the Natomas Basin.” (AR 10:1657 at 1-1.) The HCP lists 26 species that are “potentially subject to take,” (id. at 1-6), and which are to “be included in the state and federal permits issued in accordance with the Plan.” (Id.) The proposed permit authorizes incidental take resulting from urban development, as well as any incidental take that may occur through rice-farming or result from management of the Plan’s reserve lands. The HCP was developed as a regional conservation plan for the entire Natomas Basin, and was intended for use in connection with ITP applications for each of the municipalities and water companies with interests in the Basin: [t]he following agencies or jurisdictions will be seeking, or are expected to seek, Section 10(a)(1)(B) and [California Fish and Game Code] Section 2081 permits for their activities under this Plan: (1) the City of Sacramento; (2) Sacramento County; (3) Sutter County; (4) Reclamation District No. 1000; and (5) the Natomas Central Mutual Water Company.... These agencies will be seeking their respective permits for any incidental take that may occur as a result of their activities (e.g. maintenance and public works), or, in the case of the local land use authorities, for any incidental take that may result from actions by third parties acting under existing zoning regulations or future land use permits. (Id. at 1-2.) The Plan is administered by the Nato-mas Basin Conservancy (“NBC”) which has the responsibility to establish and oversee “a concerted Basin-wide program for acquiring and managing mitigation lands on behalf of the permittees. Specifically, the NBC will be responsible for collecting and managing mitigation fees required by the City and Counties, for using the fees to establish mitigation lands, and for managing the mitigation lands for the benefit of the covered species.” (AR 10:1657 at IV-6.) The Plan provides for a Technical Advisory Committee (“TAC”), comprised of representatives from the Service, the California Department of Fish and Game, and any permittee, as well as outside experts, “to advise the NBC in implementing” the HCP. (AR 10:1657 at IV-7.) The TAC’s role is: to advise the NBC in making technical and biological decisions with respect to reserve land selection, enhancement, and management; monitoring programs and needs; species relocation or reintroduction plans; and other issues pertaining to technical implementation of the Plan. (Id.) The Plan calls upon the NBC to assemble connected 400 acre blocks of reserve lands — with one block of at least 2500 acres — for the benefit of the Giant Garter Snake and to protect Swainson’s hawk habitat and nesting areas. The HCP states that “to the maximum extent practicable, the [Natomas Basin] HCP will ensure that habitat acquisition will be provided in advance oí habitat conversion resulting from urban development in the Natomas Basin.” (Id. at IV-50 (emphasis added).) Funding for land acquisition, however, is derived from the collection of mitigation fees for development. Thus, with regard to the phasing of land acquisition, the HCP actually requires only that, after an initial acquisition of 400 acres, which is to be made “as soon as possible,” (id. at IV-50), “no more than one year shall elapse between receipt of a fee and expenditure of that fee in the purchase or other acquisition of mitigation land.” (Id. at IV-51.) The Plan is based on certain key principles and assumptions. First, the Plan assumes that only 17,500 acres of Basin land will be developed over the 50 year life of the permit, and that a substantial proportion of the undeveloped land will remain in agriculture, particularly rice, which is believed to have unique value as habitat for the GGS. The Plan’s conclusion that a ratio of .5 acres of reserve lands for each 1 acre of developed land will ensure the biological needs of the protected species is based on the assumption that a considerable portion of the undeveloped and agricultural lands in the Basin will remain undeveloped, thereby augmenting the habitat value of the reserve lands. Second, the Plan pursues a regional approach to conservation. Whereas without the Plan, individual landowners could pursue separate permit applications, or develop their land without securing an ITP, the HCP is intended to provide a consolidated approach under which resources may be pooled and conservation lands may be purchased throughout the Basin. Third, the HCP treats all Basin lands as fungible, as equally valuable habitat. Thus, the HCP requires developers to “mitigate” for the anticipated take of individuals or habitat by payment of a fee for each acre developed. Rather than differentiating among lands according to their value as habitat for protected species, the HCP requires all landowners within the Permit area to pay a mitigation fee for developing their land, regardless of whether any particular parcel has or lacks habitat value. Depending on one’s point of view, this uniform treatment is either a strength or a weakness of the Plan. It is a strength because mitigation fees are to be collected on all acreage and are used “to set aside 0.5 acres of habitat land for each 1.0 acres of gross development that occurs in the Basin.” (AR 10:1657 at IV-6.) It is a potential weakness because the Plan does not attempt to identify, prior to intensified development under the ITP, particular parcels for acquisition as reserves, based upon the importance of those parcels as habitat, but simply specifies acquisition criteria, and leaves specific reserve acquisition to the future decisionmaking of the NBC. Finally, the Plan is based upon what it calls “adaptive management.” The Plan recognizes that the current state of knowledge as to the conservation needs of protected species is imperfect, and that its assumptions as to the amount, location, and pace of development in the Basin and as to the adequacy of the mitigation fee to accommodate increased expenses may prove inaccurate. The Plan addresses these uncertainties through its “adaptive management” provisions, which permit the Plan’s conservation strategy to be adjusted based on new information. (See id. at IV-43.) The HCP’s conservation program can be modified under the adaptive management provisions if: (1) new information results from ongoing research on the GGS or other covered species; (2) recovery strategies under Fish and Wildlife Service recovery plans for the GGS or the Swain-son’s hawk differ from the measures contemplated by the HCP; (3) certain of the HCP’s mitigation measures are shown through monitoring to require modification; or (4) the HCP’s required minimum block sizes for reserve lands are shown to require revision. (Id. at IV-43.) The Plan anticipates that the NBC will make discretionary decisions in future years based upon new information. The NBC will decide, for example, which lands to purchase, depending on a variety of future considerations difficult now to predict, and whether to change the mix of -in and out of Basin reserve lands and agricultural' as opposed to marsh reserve lands. The Plan provides for two distinct types of monitoring to assess its continuing effectiveness at meeting its conservation goals. First, periodic multi-species inventories across the Plan’s entire system of reserve lands “shall be conducted throughout the [Natomas Basin] HCP plan area a minimum of once every five years.” (Id. at IV-45.) Second, “when necessary, as determined by the NBC and its Technical . Advisory Committee (TAC), focused monitoring efforts [will be conducted] to assess the effectiveness of specific management and enhancement programs.” (Id.) The results of these monitoring efforts will “form an important component of the Adaptive Management” program. (Id.) Apart from the ongoing monitoring and adaptive management programs, the Plan addresses the “variety of uncertainties [that] exist in the Plan,” including, among other things, the actual level of development that will occur in the basin, and the “extent, location and effectiveness of the habitat reserve system as it is developed under the Plan,” by providing for “a comprehensive program review designed to evaluate the performance and effectiveness of the Plan.” (Id. at IV-59.) The program review is to be conducted at roughly the halfway point of the Plan, “when and if urban development [of currently undeveloped land] within the basin reaches a total of 9,000 acres.” (Id.) This program review is to be conducted by the NBC, the per-mittees, the Fish and Wildlife Service, and the California Department of Fish and Game (“CDFG”), and is to address whether the HCP is meeting its original goals with respect to four principal issues: (1) the status of the covered species; (2) the status and effectiveness of the reserve system; (3) the status and effectiveness of the Plan’s funding mechanism; and, (4)" the distribution of developed and reserve lands within the Basin. During the program review, no more than an additional 3,000 acres may be developed, so that, assuming that all Basin development proceeds under the auspices of the HCP, no more than 12,000 acres in total will have been developed in the Basin before the program review is completed. C. The 1997 Biological Opinion As required by § 7(a)(2) of the ESA, the Service issued a Biological Opinion, (“1997 Biological Opinion”) (AR 9:1563), in which it concludes that the issuance of the ITP is not likely to jeopardize the continued existence of any species covered by the Permit. In the 1997 Biological Opinion, the Service provides an account of the then current state of knowledge with respect to the “status and environmental baseline” of each covered species, including distribution and population. (See id. at 1574-79.) With regard to the Giant Garter Snake, the 1997 Biological Opinion emphasizes the benefits of the wetland habitat portion of the reserve system, which is to consist of “a network of reserves a minimum of 400 acres in size and connected by a network of canals,” and “at least one parcel a minimum of 2500 acres in size.” (Id. at 1567.) The 1997 Biological Opinion notes that “habitat enhancements on the reserve lands are expected to increase the amount and quality of habitat available to the giant garter snake through time as the [Nato-mas Basin] HCP is implemented.” (Id.) The 1997 Biological Opinion concedes that a certain amount of uncertainty exists with respect to factors that “could have significant consequences for [the success of the] conservation program.” (Id. at 1583.) The Service explains, however, that these uncertainties are “inherent in the land use realities within the [Natomas Basin] HCP plan area and difficult to fully avoid.” The 1997 Biological Opinion concludes that the monitoring, adaptive management, and program review provisions of the HCP will enable the NBC to respond appropriately as new information is developed: The [Natomas Basin] HCP recognizes these potential difficulties and incorporates a wide array of adaptive and corrective features designed to respond to such future uncertainties, to changing circumstances, and to new information throughout the term of the permit. These include: (1) its Adaptive Management program ...; (2) its biological monitoring program ...; ©provisions for incorporating a giant garter snake recovery plan when one is developed and approved ...; and (4) a comprehensive program review to occur when urban development in the Natomas Basin reaches 9,000 acres. (Id.) On the basis of these provisions, the 1997 Biological Opinion concludes that “provided that reserve management decisions are appropriately adjusted through time based on results of monitoring and that the corrective features of the Adaptive Management and other programs described above are implemented, the proposed action will not appreciably reduce the likelihood of the survival and recovery of the giant garter snake in the wild.” (Id.) With regard to the Swainson’s hawk, the 1997 Biological Opinion notes that Under the Plan’s 0.5-to-1.0 mitigation ratio it is theoretically possible that up to two thirds of [the Swainson’s hawk] zone could be lost to urbanization, since no other explicit limits on development in this area are required. Considering the importance of this area to Swain-son’s hawks nesting within the Basin, such a loss would impose unacceptable impacts to the species and could result in loss of all or a significant part of the Basin’s nesting population of this species. (Id. at 1584.) However, the Service agrees with the HCP “that development in the Swainson’s hawk zone will be much more limited than the theoretical two-thirds,” (id. at 1584), because the areas within the hawk zone are not now zoned for urban development, and because the plan requires the NBC to monitor urban development in the zone and to acquire or protect sufficient land to prevent the potential adverse consequences. (See id.) Ultimately, as with the giant garter snake, the 1997 Biological Opinion concludes that “provided that reserve management decisions are adjusted through time based on results of monitoring and that the corrective features of the Adaptive Management and other programs described above are implemented, the proposed action will not appreciably reduce the likelihood of the survival and recovery of the Swainson’s hawk in the wild.” (Id. at 1586.) With respect to the other covered species, the 1997 Biological Opinion generally concurs with the HCP’s conclusions that the remaining covered species would not be significantly affected by the Plan and might in fact benefit from the reserve system created under the Plan. (See id. at 1586-91,1595.) The 1997 Biological Opinion briefly addresses the tension between the regional nature of the Plan and the local nature of the ITP. The Service acknowledges that, although the HCP is a regional plan that assumes permit applications from each of the three land use agencies and the two irrigation districts with interests in the Basin, complete participation is not assured, and “a lack of participation by Sacramento or Sutter County, could compromise the NBC’s ability to assemble the required contiguous 400-acre and 2500-acre habitat blocks for the mitigation reserve system.” (Id. at 1580.) The 1997 Biological Opinion ultimately brushes off these concerns, stating that mitigation “will keep pace with, and contribute to an overall balance between, habitat converted and habitat protected,” (id. at 1581), and concluding that “the Plan would be self-sufficient within each permit area, to the extent that each permittee must mitigate for impacts to covered species that occur as a result of development within its respective jurisdiction ... and the mitigation must meet the Plan’s basic biological standards.” (Id. at 1580.) D. The 1997 Findings and Recommendations On December 31,1997, the Service’s Regional Director signed the “Findings and Recommendations Regarding Issuance of an Incidental Take Permit to the City of Sacramento” (“F & Rs”), which summarizes the provisions of the HCP, and discusses the 1997 Biological Opinion’s analysis of the likely effect on covered species of the issuance of the permit. (AR 9:1513.) The F & Rs make each of the findings required under 16 U.S.C. § 1539(a)(2)(B), namely that: (1) the permitted taking will be incidental to otherwise lawful activity; (2) under the HCP, the City will, to the maximum extent practicable, minimize and mitigate the impacts of the taking; (3) the City will ensure that adequate funding for the HCP and procedures to deal with unforeseen circumstances would be provided; (4) the taking will not appreciably reduce the likelihood of the survival and recovery of the covered species in the wild; (5) any and all other measures required by the Service have been met; and (6) the Service has received the necessary assurances that the Plan will be implemented. (See id. at 1522-25.) Finally, the F & Rs summarize the HCP’s analysis of the three alternatives considered by the City. (See id. at 1525.) E. Procedural History On February 12, 1999, plaintiffs filed suit in this court to challenge the Secretary’s decision to issue the ITP to the City of Sacramento. Plaintiffs assert the following claims in their complaint: (1) The Service violated ESA § 10(a)(2)(A) and APA § 706(2)(A), by failing to ensure that the HCP satisfied the minimum criteria of 16 U.S.C. § 1539(a)(2)(A); (2) The Service violated ESA § 10(a)(2)(B)(iv) and APA § 706(2)(A) by failing to consider relevant factors in reaching its conclusion that the HCP “will not appreciably reduce the likelihood of survival and recovery” of covered species in the wild; (3) The Service violated ESA § 7(a)(2) and APA § 706(2)(A) by fading to consider relevant factors in reaching its “no jeopardy” conclusion, and by fading to use the best available scientific information; (4) The Service violated ESA § 10(a)(2)(B)(ii) and APA § 706(2)(A) by arbitrarily finding that the applicant will minimize and mitigate the impact of permitted takings “to the maximum extent practicable” without undertaking consideration of greater minimization or mitigation measures; (5) The Service violated ESA § 10(a)(2)(B)(iii) and APA § 706(2)(A) by arbitrarily finding that the applicant will ensure adequate funding for the plan, despite evidence that funding is inadequate and the City’s professed inability to ensure funding; (6) The Service violated ESA § 7(a)(2) and 10(a)(2) and APA § 706(2)(A) by arbitrarily providing a “no-surprises” assurance regarding future changes in the HCP, Implementation Agreement, and ITP; (7) The Service violated ESA § 10(a)(2)(C) and APA § 706(1) by failing to revoke the City’s permit despite having found that the City has violated Permit terms and conditions; (8) The Service violated ESA § 7(a)(2), 50 C.F.R. § 402.16, and APA § 706(1) by failing to reinitiate consultation despite the discovery of new information warranting reinitiation; and (9) The Service violated NEPA § 4332(C) and APA § 706(2)(A) by arbitrarily making a finding of no significant impact (“FONSI”) and failing to conduct a required EIS. On August 13, 1999, plaintiffs moved for partial summary judgment as to their first through fifth and ninth claims. On September 28, 1999, the court granted the motion to intervene of two real estate developers with landholdings in the Natomas Basin, Kaufman and Broad of Sacramento, Inc., and Kern Schumacher. On October 29, 1999, the Secretary filed his brief in opposition to plaintiffs’ motion, and also moved for summary judgment on all claims. Oral argument was heard on February 25, 2000 and on March 3, 2000. The City and intervenors join in the Secretary’s motion and in his opposition to plaintiffs’ motion. II. Legal Background Plaintiffs challenge the HCP and the Secretary’s issuance of the ITP as in violation of the Endangered Species Act (“ESA”). The court reviews the Secretary’s compliance with the ESA under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See, e.g., Bennett v. Spear, 520 U.S. 154, 176-77, 117 S.Ct. 1154, 1166-67, 137 L.Ed.2d 281 (1997). A The Endangered Species Act The ESA requires the Secretary to determine whether a given species qualifies for protection as endangered or threatened, and confers significant protection on species so listed. Section 9 of the ESA makes it unlawful for any person subject to the jurisdiction of the United States to “take” any member of any endangered or threatened species. See 16 U.S.C. § 1538(a)(1). The ESA defines “take” as “to harass, harm, pursue, hunt, wound, kill, trap, capture, or collect.” 16 U.S.C. § 1532(19). “Harm” is further defined by regulation to include killing or injuring a protected species through “significant habitat modification or degradation” that impairs “essential behavioral patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. Section 9’s broad prohibition on take is limited by several exceptions identified in § 10. Most importantly for present purposes, § 10 allows the Secretary to issue an incidental take permit (“ITP”), which authorizes its holder to take some members of protected species when the taking is incidental to carrying out an otherwise lawful activity. See 16 U.S.C. § 1539(a). The permittee under an ITP is not liable for any taking that falls within the scope of the permit. To obtain an ITP, an applicant must develop and submit a habitat conservation plan (“HCP”), which specifies (1) the likely impact from the proposed takings; (2) the steps the applicant will take to minimize and mitigate such impacts and the funding available for such mitigation; (3) alternative actions considered, and the reasons for not selecting them; and (4) such other measures as the Secretary may require as necessary or appropriate for the purposes of the plan. See 16 U.S.C. § 1639(a)(2)(A). Upon submission of a permit application and related conservation plan, “the Secretary shall issue the permit,” if he finds, after opportunity for public comment, that (i) the taking will be incidental; (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant will ensure that adequate funding for the plan will be provided; (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (v) other measures required by the Secretary will be met. 16 U.S.C. § 1539(a)(2)(B). The permit “shall contain such terms and conditions as the Secretary deems necessary or appropriate to cariy out the purposes of this paragraph, including ... such reporting requirements as the Secretary deems necessary for detennining whether such terms and conditions are being complied with.” Id. If the Secretary finds that a permittee is not complying with the terms and conditions of the permit, he “shall revoke” the permit. 16 U.S.C. § 1539(a)(2)(C). In addition to his responsibility to review the permit application for compliance with the dictates of ESA § 10, the Secretary must insure that issuance of the permit is consistent with ESA § 7(a)(2). See 16 U.S.C. § 1536(a)(2). Section 7 requires each federal agency to “insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical habitat].” Id. To comply with § 7(a)(2), an agency considering action that may affect a protected species is required to engage in a consultation process with the Service. When the action agency is the Service itself, as when the Service is considering whether to issue an ITP, it must engage in internal consultation under § 7, and may issue the permit only upon a finding that it “is not likely to jeopardize the continued existence of’ a protected species, or result in the destruction or adverse modification of critical habitat. Id.; 50 C.F.R. § 402.01(b). During the consultation process, the agency must consider direct, indirect, and cumulative effects. Any action that “may affect” listed species or critical habitat triggers the action agency’s obligation to formally consult with the Service. See 50 C.F.R. 402.14; 51 Fed.Reg. 19926, 19949-50. Formal consultation typically culminates in the issuance of a biological opinion by the Service, which addresses whether jeopardy is likely to occur for any protected species, and if so, whether “reasonable and prudent alternatives” exist to avoid jeopardy. The Service must use “the best scientific and commercial data available” in making the required “no jeopardy” finding. 16 U.S.C. § 1536(a)(2). In every respect except for this “best scientific and commercial data” requirement, the no jeopardy finding required by ESA § 7(a)(2) is identical to the survival finding required under § 10(a)(2)(B)(iv). Where the “available data” is imperfect, the Service is not obligated to supplement it or to defer issuance of its biological opinion until better information is available. Rather, “the Service must develop its biological opinion based upon the best scientific and commercial data available regardless of the ‘sufficiency’ of that data.” See 51 Fed.Reg. 19926, 19951 (final rulemaking with respect to 50 C.F.R. 402). Under ESA regulations, certain conditions may trigger an agency’s obligation to consult again on the same project. “Reini-tiation of consultation” is required “where discretionary Federal involvement or control over the action has been retained or is authorized by law,” and one of the following conditions occurs: (a) the extent of taking specified in the ITP is exceeded; (b) new information reveals that the action may affect the species or critical habitat in a manner or to an extent not previously considered; (c) the action is subsequently modified in a manner that causes ah effect to the species or critical habitat that was not considered in the original biological opinion; or (d) a new species is listed or critical habitat designated that may be affected. See 50 C.F.R. § 402.16. B. The National Environmental Policy Act The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., requires the preparation of an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see also Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569, 575 (9th Cir.1998). An EIS is a “detailed statement” examining in depth the environmental impact of the proposed action and alternatives to the proposed action. 42 U.S.C. § 4332(C). NEPA sets forth “action-forcing” procedures designed to fully inform agency decisionmakers of the environmental impact of their decisions. The reason for the EIS requirement is that “decisions that are based on understanding of the environmental consequences” will “protect, restore and enhance the environment.” 40 C.F.R. § 1500.1(c). “NEPA exists to ensure a process, not a result.” Morongo Band of Mission Indians, 161 F.3d at 575. Thus, NEPA does not forbid harm to the environment but requires government de-cisionmakers to evaluate that harm and explain why the action is justified despite the harm: NEPA is not designed to prevent all possible harm to the environment; it foresees that decisionmakers may choose to inflict such harm, for perfectly good reasons. Rather, NEPA is designed to influence the decisionmaking process; its aim is to make government officials notice environmental considerations and take them into account. Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.1983). By regulation, an agency considering whether an action would require preparation of an EIS must prepare a brief, preliminary evaluation, called an environmental assessment (“EA”). EAs are intended to be concise documents that “briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a ‘finding of no significant impact’ (“FON-SI”).” 40 C.F.R. § 1508.9. NEPA requires that an EIS be prepared before taking action that may significantly affect the quality of the human environment. See 42 U.S.C. § 4332. An EIS must be prepared if “substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.” Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992) (emphasis in original). “The plaintiff need not show that significant effects will in fact occur, but if the plaintiff raises substantial questions whether a project may have a significant effect, an EIS must be prepared.” Id. (emphasis in original). In assessing the significance of a project’s impact, NEPA regulations require the agency to consider a variety of factors, which are set out in two categories, labeled “context” and “intensity.” The regulations enumerate a number of relevant considerations, including the scope of the affected area and region, the severity of the impact, whether public health may be affected, whether unique resources may be affected, the degree to which the effects are likely to be controversial or uncertain, the prece-dential nature of the action, the impact of other related actions, the degree to which the action may affect an endangered or threatened species or critical habitat, and whether the action threatens a violation of federal, state, or local law. After conducting a preliminary environmental assessment, if the agency makes a Finding of No Significant Impact, then no EIS is required. An agency’s decision to issue a FONSI, and not to prepare an EIS, is reviewable under the arbitrary and capricious standard. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Morongo Band, 161 F.3d at 573; Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 527-28 (9th Cir.1997). C. The Administrative Procedure Act Judicial review of final administrative action is governed by § 706 of the APA. See Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410, 1414 (9th Cir.1990). The APA authorizes the court to set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), or to compel agency action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). The scope of review under the APA’s “arbitrary and capricious” standard is “searching and careful,” but “narrow.” Marsh v. Oregon Natural Resources Council, 490 U.S. at 378, 109 S.Ct. at 1861-62. A court is not to substitute its judgment for that of the agency. Id. Rather, the court’s task is to determine whether the agency’s decision is “within the bounds of reasoned decision making.” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 105-06, 103 S.Ct. 2246, 2256-57, 76 L.Ed.2d 437 (1983). To do this, the court must determine whether the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made. See Bowman Transportation, Inc., v. Arkansas-Best Freight Sys., 419 U.S. 281, 285-86, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). A corollary to the limited nature of APA review is that the court is limited to the administrative record relied upon by the agency in reaching its decision, and is not to engage in fact-finding based on extra-record material. See Oregon Natural Resources Counsil v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). However, in NEPA cases, the court may extend its review beyond the administrative record and permit the introduction of new evidence where the plaintiff alleges that the agency has neglected to take account of a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept ‘stubborn problems or serious criticism ... under the rug.’ Id. (citing Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir.1988), amended by 867 F.2d 1244 (9th Cir.1989)). In the context of NEPA, a reviewing court “must ensure that the agency has taken a ‘hai’d look’ at the environmental consequences of its proposed action.” Lowe, 109 F.3d at 526. D. Summary judgment standard Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed. Rule Civ. P. 56(c). Summary judgment is frequently appropriate in cases involving judicial review of administrative action where, as here, review is based upon a “voluminous and complete” administrative record. See, e.g., Friends of Endangered Species v. Jantzen, 589 F.Supp. 113, 118 (N.D.Cal.1984). III. Standing The Secretary initially challenges plaintiffs’ standing to challenge the ITP, asserting that plaintiffs have not submitted “a single affidavit from members of the plaintiff organizations to support a claim of standing.” (Def.’s Mem. at 34.) In fact, plaintiffs have submitted declarations that are adequate to establish their standing. (See Pis.’ Exhibits 13, 17-22.) The Supreme Court has articulated the constitutionally-imposed requirements for associational standing. In Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2212, 45 L.Ed.2d 343 (1975), the court held that: Even in the absence of injury to itself, an association may have standing solely as the representative of its members .. The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.... So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction. Id.; see also Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977) (holding that injury claimed must be germane to purpose of plaintiff organization). The Secretary does not contend that the relief sought makes the individual members of plaintiff organizations indispensable to the proper resolution of this case. Thus, the standing of plaintiff organizations depends on whether individual members would have standing to sue in their own right, and on whether the claimed injury is germane to the purpose of the organizations. Plaintiff organizations have submitted affidavits from members of each organization, stating, in substance, that they have visited and regularly do visit the Natomas Basin to see species covered by the Permit, and that they intend to continue visiting the Basin, and that their enjoyment of the species in the Basin would be affected by the takings authorized by the ITP. (See Pl.’s Exh. 13 (Sierra Club, Planning and Conservation League (“PCL”), and National Wildlife Federation (“NWF”))); Pl.’s Exh. 17(NWF); Pl.’s Exh. 18 (Environmental Council of Sacramento (“ECOS”), Friends of the Swainson’s Hawk (“FOSH”)); Pl.’s Exh. 19 (ECOS, PCL, and NWF); Pl.’s Exh. 20 (Mountain Lion Foundation (“MLF”)); Pl.’s Exh. 21 (Sierra Club, ECOS, and FOSH); Pl.’s Exh. 22 (PCL, ECOS, and FOSH). These declarations establish the standing of those individuals to challenge the ITP. See Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1303 (9th Cir.1993). Although vague expressions of intent to visit an area “‘some day’ — without any description of concrete plans, or ... specification of when the some day will be — do not support a finding of ... ‘actual or imminent’ injury,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 2138, 119 L.Ed.2d 351 (1992), the affidavits submitted by plaintiffs sufficiently detail the affi-ants’ ongoing use of the Natomas Basin for purposes of enjoyment of covered species to satisfy the requirements of Article III. “The desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing.” Lujan, 504 U.S. at 562-63, 112 S.Ct. at 2137-138. Plaintiffs’ affidavits also make the required assertions with respect to the purpose of each plaintiff organization. Thus, plaintiffs’ affidavits fulfill each of Article Ill’s requirements for associational standing. IV. Endangered Species Act Claims The nub of plaintiffs’ challenge to the HCP concerns its strategy of adaptive management. Plaintiffs object that in the face of incomplete information as to a number of important issues — including the conservation needs of the covered species, the likely location and pace of development in the Basin, and the preferred location and availability of reserves — the Plan does not undertake studies to develop better information, but simply creates a structure and describes a process for reaching and adjusting decisions in the future based on developing information. Plaintiffs contend that many of the Service’s findings are arbitrary because of the uncertainty inherent in the HCP’s deferred decisionmaking scheme. As will be discussed below in greater detail, however, inconclusive data alone does not render the Service’s findings arbitrary. See Part IV.D, infra. With miscellaneous exceptions, plaintiffs’ ESA claims fall into two categories. First, plaintiffs challenge as arbitrary the Service’s findings as to the adequacy of the Plan’s provisions, particularly those related to funding and mitigation; second, plaintiffs contend that the Service’s findings regarding the biological effects of the Plan on covered species are arbitrary and capricious. As explained below, under the APA’s deferential standard of review, the Service’s findings largely pass muster with respect to the Plan as a whole; however, with respect to the City’s Permit, the Service’s findings do not. Many of the provisions of the HCP are based on the assumption that all of the land-use agencies with jurisdiction over parts of the Basin will become permittees. Similarly, the Service’s findings are plainly geared toward the regional nature of the HCP, and do not adequately reckon with the local nature of the Permit or analyze what would happen if the City’s lands were developed under the HCP, while the lands outside the City limits were developed piecemeal, by individual landowners, outside the HCP and the protections provided by the HCP. The importance of this point is most obvious with respect to the funding mechanism, which relies on future fee increases to fund current increases in land acquisition costs. Because reserve land acquisition lags behind the development that funds it, the funding mechanism must play catch up, passing increased costs on to the next developer. The Plan can cope with increased expenses for mitigation, monitoring, and the like, only so long as there exists a ready supply of land to be developed under the HCP. The biological findings, too, are based on inadequate consideration of the tension between the regional Plan and the local Permit. The record contains no particularized analysis of the importance of the City’s lands as habitat, and no consideration of how the species will fare if the City’s lands are developed under the Plan and the some or all of the remainder of the Basin is fully developed outside the HCP. Similarly, although the 1997 Biological Opinion concedes that large blocks of reserve lands may not be possible if only the City is a permittee, there is no analysis of the consequences—particularly for the GGS—of abandoning the goal of large connected blocks of reserve lands. A. ESA § 10(a)(2)(A)—minimum en-tena for a habitat conservation plan Plaintiffs argue that the Service’s approval of the HCP is improper because the HCP does not adequately disclose its impacts on' covered species and their habitat. ESA § 10(a)(2)(A) states that no incidental take permit may be issued unless the applicant submits an HCP that meets certain requirements. See 16 U.S.C. § 1539(a)(2)(A). One such requirement is that the HCP specify “the impact which will likely result from such taking.” Id. As noted above, the HCP does discuss the impact that will likely result from development activities, rice farming, and operation of water conveyance systems in the Nato-mas Basin. While the Plan and associated supporting documents do not make specific quantitative estimates of take, they do make general assessments of the effect of development under the Plan as to the various species affected, particularly the GGS and the Swainson’s hawk. Plaintiffs argue, however, that the ESA requires precise quantitative measures of take. According to plaintiffs, the HCP must estimate the number of individual members of a species within the Permit area and must then estimate the number of members of the species that will be taken. Plaintiffs cite no authority for this interpretation of the ESA. The Secretary’s contrary interpretation of the statute is entitled to deference. See Chevron, U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). The court finds that the HCP meets the minimum requirements for a habitat conservation plan. B. ESA § 10(a)(2)(B)(ii)—minimize and mitigate the impact of permitted takings “to the maximum extent practicable” Plaintiffs argue that the Service’s (B)(ii) finding, that the Plan will minimize and mitigate takings to the maximum extent practicable, is arbitrary and capricious because the Service failed to consider any alternatives involving greater mitigation measures. “Normally, an agency rule would be arbitrary and capricious if the agency has ... entirely failed to consider an important aspect of the problem.” Motor Vehicle Manufs. Ass’n v. State Farm Automobile Ins. Co., 468 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). As authority for the proposition that discussion of additional mitigation measures that are deemed impracticable is “an important aspect” of a(B)(ii) finding, plaintiffs cite the Service’s HCP Handbook, which states that: [P]articularly where adequacy of mitigation is a close call, the record must contain some basis to conclude that the proposed program is the maximum that can be reasonably required by that applicant. This may require weighing the benefits and costs of implementing additional mitigation, the amount of mitigation provided by other applicants in similar situations, and the abilities of that particular applicant. (Pis.’ Exh. 6 at 7-3.) As discussed above, the HCP, the 1997 Biological Opinion, and the F & Rs discuss three alternative HCP strategies, none of which involves additional mitigation. (See n.8, supra.) The Secretary argues that the HCP Handbook is not legally binding. There is room for argument on this point, but assuming the Secretary is correct, the most reasonable reading of the statutory phrase “maximum extent practicable” nonetheless requires the Service to consider an alternative involving greater mitigation. See Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1279-81 (S.D.Ala.1998). “The Administrative Record must contain some analysis of why the level or amount selected is appropriate for the particular project at issue.” Id. at 1282. The linchpin of the HCP is the .5 to 1 preserved to developed acre ratio and the mitigation fee that is based on this ratio. Thus, to consider an alternative providing greater mitigation, in the context of this HCP, the record should provide some basis for concluding, not just that the chosen mitigation fee and land preservation ratio are practicable, but that a higher fee and ratio would be impracticable. The Secretary does not appear to disagree with the above analysis but rather argues that the record does adequately demonstrate that the HCP provides for the maximum practicable mitigation fee and reserve land ratio. However, the record is nearly non-existent on this matter. There are conclusory statements in the record to the effect that “the common and local wisdom is that a fee in the range from $2000 to $2500 per acre is practicable,” (AR 23:03888, 03891; AR 23:03904, 03906), but the record is devoid of evidence that the Service subjected this assumption to any examination or attempted to determine if a higher base fee would also be practicable. There is no economic analysis, discussion of mitigation fees in similar plans and circumstances, or even representations from particular landowners. The Secretary insists that “there was evidence provided by SAFCA’s consultant” showing that a fee in the range of $2000 to $2500 per acre was the maximum practicable amount. But the sources cited simply state the conclusion, based on “local wisdom,” without argument or analysis. (See Def.’s Mem. Points and Authorities at 27-28, citing AR 23:03891; AR 23:03931.) The June 23, 1995 Memorandum from SAFCA’s consultant to the Service refers to a “substantial financial analysis” showing that a fee in that range is practicable. (See AR 23:03931.) For the inverse proposition, however, the Memorandum relies on no such analysis, but states simply that “some of the working group members can explain why exceeding that projected habitat fee would have significant adverse economic impacts.” (See id.) The plain language of the statutory provision requiring that the Plan minimize and mitigate its effects “to the maximum extent practicable” is not satisfied by a fee set, as here, at the minimum amount necessary to meet the minimum biological necessities of the covered species. The record lacks adequate evidence and analysis of whether a fee higher than that initially proposed by the working group would be economically practicable. The Secretary finds support for the (B)(ii) finding in part in the Plan’s provision allowing increases in the mitigation fee as necessary to cover increased costs. But increases over the life of the Plan are capped at 50% of the initial base fee for most, although not all, types of expenditures. Moreover, because fee increases are not applied retroactively, the Plan’s provisions for fee increases can be expected to produce revenue only if and to the extent that future developers are willing to participate in the HCP. The problem that this mitigation structure presents is particularly acute for the City’s Permit, given the relatively small portion of the Basin within the City and the pace at which development of the City’s land is expected. Thus, it is possible, even likely, that City developers will avoid the future substantial increases in the mitigation fee that will be borne by out of City developers. While this structure may make sense, at least without analysis and explanation, it is not obvious how the Secretary concluded that City developers would pay a fee that is the maximum practicable, particularly when later developers are expected to pay a much larger fee. In short, the Secretary’s conclusion that $2240 per acre is the maximum practicable initial base mitigation fee is unsupported by substantial evidence in the record, and therefore is arbitrary and capricious. One additional aspect of the Plan renders the (B)(ii) finding vulnerable. The Plan provides for, and the ITP authorizes, any take “that is incidental to normal rice farming activities.” (AR 10:1657 at IV-6.) The Plan does not require even that rice farmers use “best management practices.” The ostensible rationale for this decision is to encourage rice farming in the Basin, which is believed to provide important habitat for the GGS. (See id.) The record reveals no basis, however, for the Service’s apparent conclusion that the Plan’s failure to require best management practices of Basin rice farmers as a condition of coverage under the ITP is, on balance, beneficial to the GGS, or for a conclusion that further minimization of take by requiring best management practices would be impracticable or would discourage rice farmers from continuing to farm. For these reasons, the Service’s (B)(ii) finding is arbitrary and capricious considering the HCP as a whole and the City’s Permit in particular. C. ESA § 10(a)(2)(B) (Hi)—adequate funding Plaintiffs argue that the Service’s finding that the City would “ensure” adequate funding for the Plan is arbitrary, for two reasons. First, plaintiffs contend that the initial mitigation fee, even in light of the Plan’s provisions for fee increases, is inadequate to cover the costs of the various components of the mitigation program. The record, however, provides an adequate basis for the Secretary’s conclusion to the contrary. The initial fee was set based on the estimated needs of the NBC prepared by experts retained by SAFCA. (See AR 10:1657 at IV-54.) Although plaintiffs point to evidence in the record suggesting that the fee was deemed inadequate by some, the Service’s decision to rely on SAFCA’s analysis is entitled to deference. See Marsh, 490 U.S. at 378, 109 S.Ct. at 1861 (agency has discretion to select among competing expert opinions). Second, plaintiffs argue that the (B)(iii) finding was arbitrary and capricious with respect to the City’s permit, in light of the City’s explicit refusal to “ensure” funding in the event of a shortfall. This argument has merit. Plaintiffs argue that nothing in the record supports the HCP’s assertion, endorsed in the F & Rs, that: The [Natomas Basin] HCP can be implemented ind