Protect Our Water v. Flowers (377 F. Supp. 2d 844, 2004)

MEMORANDUM AND ORDER

SHUBB, District Judge.

Plaintiffs brought this action pursuant to the Clean Water Act (“CWA”), 33 UJ3.C. §§ 1251 et seq.; the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq.; the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq.; and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. to challenge the issuance by defendant U.S. Army Corps of Engineers (“Corps”) to defendant Diablo Grande Limited Partnership (“Diablo Grande”) of a permit 'for the dredge and fill of waters of the United States. Plaintiffs now move for a preliminary injunction and summary judgment on all claims; defendants have filed cross motions for summary judgment on all claims.

I. Factual and Procedural History

Plaintiff Protect Our Water (“POW”) is an unincorporated association formed for the preservation of environmental resources in California. (CmplJ 11(a)). Plaintiff San Joaquin Raptor/Wildlife Rescue Center (“Center”) is a non-profit membership organization formed to preserve wildlife habitat and the environment. {Id. ¶ 11(b)).

Defendants Lt. Gen. Robert B. Flowers, Commander of the Corps, and Michael J. Conrad Jr., District Engineer .for the Sacramento District of the Corps, (collectively, “federal defendants”) are sued in their official capacities. {Id. ¶ 19). In their official capacities, the federal defendants are generally responsible for implementing the CWA’s section 404 permitting program. (Id. ¶ 19). Defendant Diablo Grande is a limited partnership that purchased a 29,-500 acre site in 1980 for a planned community (“the Project”) located in southwestern Stanislaus County, California. The Project consisted of five phases, to be built over 20-25 years,' and included six golf courses, swim and tennis facilities, a hotel and executive conference centers, a research campus, winery and vineyard, municipal facilities, commercial centers, shops and offices, and 5,000 residential units divided into five “villages.” (Pis.’ Statement of Undisputed Facts (“SUF”) ¶ 1). However, local entitlements for all but the first phase, Oak Flat Village (“Phase 1”) were subsequently invalidated. (See A.R. 02272; 04828).

Phase 1 of the project is to be set on approximately 2,250 acres in Oak Flat Valley, located in the Salado Creek drainage. (Pis/ SUF ¶ 4). Phase 1 includes 2,000 residential homes constructed on approximately 830 acres; a town center; shopping center; public services; hotel and conference center; and resort complex constructed on approximately 70 acres; an open space area of about 1,160 acres, including two golf courses; and a road system encompassing approximately 187 acres. (Id. ¶ 5). Unit 1 of Phase 1 consists of a hotel and conference center, winery, 313 houses and an access road (“cut-across road”) to the Phase 1 site from Interstate 5. (A.R. 05277). Construction of Unit 1 of Phase 1 has begun. (Pl.’s SUF ¶ 9). Two golf courses have already been constructed, the cut-across road has been built, and additional work is ongoing. (Id. ¶¶ 9-10). No construction has begun on the remainder of Phase 1 or on Phases 2-5 of the Project. (Id. ¶ 11). ■

Since September 1992, Diablo Grande has received multiple Nationwide Permit (“NWP”) Number 26 authorizations from the Corps for impact to United States waters for Phase 1 of the Project. (A.R. 05355; 06821). The first of Diablo Grande’s NWP requests was for the issuance of a permit for the cut-across road in September 1992. Because the cut-across road could potentially affect the endangered San Joaquin kit fox (“kit fox”), the Corps denied this request on November 13, 1992, pending completion of a consultation with the U.S. Fish and Wildlife Service (“Service”) pursuant to section 7 of the ESA. (A.R.00046).

The Corps requested formal consultation with the Service concerning the effect of the proposed fill related to the construction of the cut-across road on the endangered San Joaquin kit fox. (A.R.00047): The Service issued its biological opinion regarding the permit for the cut-across road on January 10, 1995. (A.R. 00808-831).

A. 1995 Biological Opinion

In the 1995 biological opinion (“Biological Opinion”), the Service concluded that issuance of a permit to fill wetlands for construction of the cut-across road is “not likely to jeopardize the continued existence of the San Joaquin kit fox. Critical habitat has not been designated for this species; therefore, none shall be destroyed or adversely modified.” (A.R.00809).

As part of the consultation process, the Service requested that Diablo Grande perform studies, using Service protocol, of the kit fox in Oak Flat Valley. (A.R.06631-32). These surveys included walking transects, spotlighting, automatic camera stations, and scent stations. (A.R.06569). The surveys were conducted in May and June of 1993, and again in August and September of 1993. (Id.). Although the surveys found no evidence of current kit fox activity, Oak Flat Valley contains suitable habitat and potential dens for the kit fox. (Id.). The Service noted that there have been kit fox sightings within five miles of Oak Flat Village Road and Diablo Grande property. (A.R.00810). Four potential dens were found in Oak Flat Valley. (A.R.00810-11). The Service determined that Oak Flat Valley may provide a potential movement corridor to and from the grassland located west of Oak Flat Valley because of the prey availability and the proximity to known kit fox habitat. (Id.).

The Service listed possible adverse effects of Diablo Grande’s construction of the cut-across road as: (1) harassment resulting from increased levels of human disturbance, and implementation of certain mitigation measures, such as excavation of kit fox dens to prevent entombment of foxes; (2) direct injury or death of individual animals by vehicle strikes resulting from increased construction related traffic, or through entrapment in open holes or trenches; (3) displacement into adjacent areas, and accompanying increased predation, exposure, starvation, or stress through disorientation, loss of shelter, and intraspecific and interspecific aggression. (A.R.00811).

The Service found that “[a]n indirect effect of the access road will be the construction of the Diablo Grande subdivision.” (Id.). Although the Diablo Grande land use plan indicated that approximately 12,000 acres would be “Conservation Areas,” the Service expressed the belief that the development of the entire Diablo Grande project would remove approximately 11,708 acres of potential kit fox denning and foraging habitat, and could further fragment kit fox populations. (Id.).

The Service also considered the impact of construction of the water transmission line for which Diablo Grande sought a permit in October 1994, and determined that construction might result in temporary disturbance of a potential kit fox movement corridor. (A.R.00812). Preclusion of use of the movement corridors would further fragment the existing range of the kit fox. (Id.). Habitat fragmentation, according to the Service, is the leading cause of extinctions of populations worldwide, and the Service warned that “[cjomplete fragmentation in this area of the kit fox range would probably lead to extinction of the population north of the project area....” (Id.). Because of the possible fragmentation of the kit fox population as a result of the construction, the Service recommended implementation of a program to preserve the kit fox corridor through Oak Flat Valley. (Id.).

The incidental take statement included in the Biological Opinion anticipated “take ... as a result of fill for the construction of the access road ... [and] development of the Diablo Grande subdivision.” (A.R. 00814). The Service estimated that construction of the access road “may result in one (1) kit fox being harmed or killed.” (Id.). But “[t]he Service considered] the number of animals subject to harassment from noise vibrations, and capture or excavation of dens and burrows to be impracticable to estimate.” (Id.). To minimize the impacts of incidental take, and to be exempt from the take prohibitions of section 9 of the ESA, the Corps and Diablo Grande were required to implement “reasonable and prudent measures.” (A.R. 00814). These measures included: (1) mitigation for anticipated direct impacts on the kit fox via acquisition of 125 acres of grassland habitat to be held in perpetuity by either the Department of the Interior, or an agency approved by the Department of the Interior and the Service, and (2) implementation of the Standardized Recommendations for Protection of the San Joaquin Kit Fox. Also, Diablo Grande was required to prepare and implement a plan to offset the indirect effects (the Diablo Grande subdivision and associated facilities) of the construction. (A.R.00814-16).

While the consultation with the Service was still ongoing, the Corps authorized, under NWP 26, impacts to .82 acres of United States waters for development of the Ranch Golf Course. (A.R.05855). After the Service issued the Biological Opinion, the Corps authorized, under NWP 26, the following: (1) impacts to 3.16 acres of United States waters for construction of Diablo Grande Parkway and a water transmission pipeline; (2) impacts to .57 acres of United States waters for construction of the Legends Golf Course; and (3) impact to 3.59 acres of United States waters for development of a cut-across road. (Id.). The permit for the cut-across road expired before Diablo Grande could build the road. (A.R.05125).

B. Permit Process

On July 31, 1998, Diablo Grande submitted its final permit application to the Corps for construction of Oak Flat Village; specifically, the permit application addressed the construction of the Phase 1 residential areas and the cut-across road, resulting in discharge of fill material to 5.71 acres of waters of the United States. (A.R.02023-26). Diablo Grande proposed to mitigate effects of the construction of wetlands by restoring 13.92 acres. (A.R. 02032-33). The Corps issued Public Notice 19920769 for the permit application in September 1998. (A.R.02031-119). During the public notice and comment period, the Corps received comments from the United States Environmental Protection Agency (“EPA”) (A.R.02120-23), Stanis-laus County (A.R.02128) (stating that it had no comments at this time), Robert Hansen (a neighboring land owner) (A.R. 02251-54), Diane G. Kindermann (an attorney representing neighboring landowners) (A.R.02257-60), and the Service (A.R. 02261-65).'

1. Comments from EPA

The EPA wrote several letters objecting to the permit. (See, e.g., A.R. 02120-23; A.R. 02267-70; 02560-72; 03619-20). In the EPA’s letters of September 14, 1998, October 27, 1998, May 5, 1999, and August 9, 1999, the EPA “strongly” objected to the project, expressing the following concerns: (1) mischaracterization of the project purpose and accompanying consideration of less-damaging practical alternatives under the EPA’s 404(b)(1) Guidelines; (2) the individual and cumulative impacts to waters of the United States that would result from the. construction of the entire 29,500- acre Project; (3) significant degradation o.f the aquatic environment; and (4) the need for an Environmental Impact Statement (EIS). (A.R. 02121; 02560-2565; 03619-20).

Although the Corps had already issued three approvals for the fill of waters pursuant to NWP 26, the EPA noted that it disagreed with the Corps’s conclusion regarding the independent utility of the three previously authorized projects. The EPA urged that “[i]n the case of the proposed Diablo Grande project, impacts to waters of the United States must be assessed for the entire project (Phases 1 through 5), not just Phase 1 alone.” (Id.). According to the EPA, waters located on the proposed Project site are important to ecosystem health and development of the Project would have direct and indirect impacts on several watersheds. (A.R.02122). The EPA concluded that the discharges associated with Project “may have substantial and unacceptable impact on aquatic resources,” and “strongly recommend[ed] a programmatic EIS to evaluate the individual and cumulative impacts to the environment.” (Id.) (emphasis in original).

On October 25, 2000, the Corps prepared a notice for the EPA of its intent to issue the Section 404 permit to Diablo Grande. In the notice, the Corps addressed the four issues on which the two agencies continued to disagree regarding the permit issuance: (1) the scope of what constitutes a single and complete project; (2) need for an EIS; (3) compliance with 404(b)(1) Guidelines regarding determination of least damaging practicable alternatives to the project; and (4) the proposal to preserve 5800 acres in the Phase 1 development area. (A.R.05117-18).

Pursuant to the CWA Section 404(q) Memorandum of Agreement (“MOA”) between the EPA and the Department of the Army, the EPA requested elevation of the permit decision to the Assistant Secretary of the Army (Civil Works) (“ASACW”). (See A.R. 05165). The ASACW denied the EPA’s request after reviewing “the concerns raised[,] ... the District’s decision documents and draft permit, and information provided by the applicant, and [after] conducting an on-site inspection.” (A.R. 05265). The ASACW determined that Phase 1 “constitutes a single and complete project with independent utility,” the aquatic resources located within the boundary of Phase 1 are not of national importance, and no substantial and unacceptable adverse impacts will result from the proposed permit. (Id.). The ASACW agreed with the Corps that no EIS need be prepared for the entire 29,500 acre Project. (Id.). In addition, the ASACW concluded that the project represented the least environmentally damaging practicable alternative, and that the direct impacts will be addressed by the mitigation plan. The ASACW determined that the Corps could proceed to issue the permit. (Id.). However, the ASACW directed the Corps to ensure that secondary, indirect and cumulative impacts were completely documented and to evaluate the need for additional mitigation to offset those impacts. (A.R.05266).

After the issuance of the ASACW’s decision and before issuance of the permit, on January 17,. 2001, the EPA and Diablo Grande entered into an “Agreement Regarding the Diablo Grande/Oak Flat Village Section 404 Permit.” (A.R.05272). Diablo Grande agreed to permanently protect all lands located in the “Sawtooth” area (amounting to 1,230 acres), which contains a portion of the Orestimba Creek and its tributaries. (A.R. 05272; 05280-81). The EPA agreed that “protection of the Additional Mitigation Lands (the “Sawtooth” area) as a condition of the Permit in combination with the mitigation currently included in the Permit will fully and completely compensate for all direct, indirect and cumulative impacts to aquatic resources associated with the Permit.” (Id.). In addition to the “Sawtooth” preserve, Diablo Grande also requested that it establish a second preserve, a 1035 acre area containing a portion of Orestimba Creek. (A.R.05380).

2. Comments from the Service

The Service responded to the Public Notice by a letter dated' October 2, 1998, in which it commented that the 29,500 acre Project “is a single and complete project .... To avoid piecemealing, the impacts to waters of the United States should be assessed for the entire project before additional construction is permitted.” (A.R. 02261-65). The Service also advised that a mitigation plan be developed for the entire Project, and that impact to existing wetlands should be avoided. (A.R.02261). Finally, the Service recommended that the Corps conduct “appropriate surveys” and initiate consultation on the threatened California red-legged frog, “if the frog or any other special status species is identified to be present on the development site.” (A.R.02264). In a later letter, dated October 8,1998, the Service indicated that Dia-blo Grande had yet to comply with the terms and conditions of the Biological Opinion requiring the purchase of 125 acres for a perpetual preserve, implementation of the Standardized Recommendations for Protection of the San Joaquin Kit Fox, and preparation and implementation of a plan to minimize the impacts of habitat loss and fragmentation of kit fox populations due to the proposed project. (A.R.07158-59). The Service also warned that it “believes that unauthorized take of [the kit fox] may be occurring as a result of the Diablo Grande project.” (Id.).

On February 27, 1999, Diablo Grande submitted the red-legged frog surveys requested by the Service. (A.R.02429-40). The surveys, which Diablo Grande alleges were done according to Service protocol, concluded that although habitats with characteristics that may be suitable for the red-legged frog appear to exist at the Phase 1 site, red-legged frogs' were not present within the Phase 1 site. (A.R. 02440).

3. Permit and Environmental Assessment (“EA")

On June 20, 2001, the Corps issued Dia-blo Grande a permit pursuant to section 404 of the CWA, authorizing Diablo Grande to discharge dredged and fill material into 5.44 acres of waters of the United States for the. construction of the cut-across road and residential lots within the Phase 1 property. (A.R.05297-303). The permit provided conditions that - Diablo Grande had to meet prior to receiving authorization from the Corps to begin construction. (Id.). The permit stated that the Corps “may reevaluate its decision on this permit at any time the -circumstances warrant.” (A.R.05301-02).

On the same day, the Corps issued its Environmental Assessment (“EA”) for the proposed project. The EA is organized into three main sections. The first describes the proposed project and mitigation plans. (A.R.05353-57). The second section discusses the environmental and public interest factors considered by the Corps in the EA. In this section, the Corps lays out the possible alternatives to the proposed project available to Diablo Grande. (A.R.05353-57). Also, this seetion includes a discussion of work to be performed by Diablo Grande prior to engaging in work authorized by the permit, such as the posting of a performance bond, development of a final comprehensive mitigation and monitoring plan, mitigation for the total loss of 9.08 acres of waters of the United States within the Phase 1 area by the creation of 15.21 acres of waters, mitigation for secondary and indirect effects to waters of the United States within the Phase 1 area, and creation of preserves under a permanent conservation easement. (Id.).

The third section is devoted to the environmental consequences of the project and the mitigation measures adopted. (A.R.05357-76). This section analyzes aspects of the environment affected by the proposed construction, such as the development area’s physical, chemical and biological characteristics, which includes discussion of the possible presence of the endangered kit fox and the threatened red-legged frog, and human uses. (Id.). Included in this section is an analysis of the impacts on the above-listed characteristics as a result of the proposed construction. (Id.). The final section provides a summary and evaluation of the comments received during the public notice and comment period for the permit. (A.R.05377-85). The EA concluded with a finding of no significant impact (FON-SI), a determination that an EIS is unnecessary before the issuance of a permit for the proposed construction because the permitted action will not have a significant impact on the quality of the human environment. (A.R.05383).

C. Post-Issuance Response

Prior to beginning construction of Oak Flat Village, Diablo Grande completed additional kit fox surveys in October and November 2001, and March 2002. (A.R. 05639). An additional kit fox survey in the vicinity of the proposed cut-across road for Phase 1 was done prior to the start of construction in "May 2002 to fulfill the requirements of the Biological Opinion. (A.R.06011). No signs of kit fox activity were observed within 300 feet of the proposed cut-across road. (Id.).

The Service, in a series of letters in 2002, requested that the Corps reinitiate consultation under section 7 of the ESA. (A.R. 05838-51; 05886-91; 05968-75; 06177-84). In these letters, the Service maintained that its Biological Opinion was conducted only for the effects on the kit fox at wetted areas and adjacent wetted areas in the area for the cut-across road, not for the 29,500 acre Project area. (A.R. 05838-43). The Service stated that it had information that kit fox had been sighted within 10 miles of the proposed project location, and that the proposed project lies partially within an important kit fox movement corridor. (A.R.05888). The Service expressed concern that the permitted construction will exceed the incidental take coverage for the kit fox permitted in the Biological Opinion because Diablo Grande’s pre-construction survey identified potential kit fox dens on the Phase 1 site. (A.R.05846). Also, the Service requested formal consultation on the" red-legged frog, which was' listed as a threatened species after the Biological Opinion was done, and which the Service believed may be affected by the Phase 1 construction. (A.R. 05838-43).

On July 22, 2002, the Corps informed Diablo Grande that work authorized by the permit could begin. (A.R.06021). In response to the Service’s letters, the Corps met with Service staff and then, in an October 4, 2002 letter, disagreed with the Service’s assertions and declined the Service’s request to reinitiate consultation. (A.R.06225-26). The Corps determined that no information suggested that the existing Biological Opinion was insufficient to provide coverage for the Phase 1 construetion. (Id.). The Corps also declined to initiate consultation regarding the red-legged frog, determining that Diablo Grande’s surveys indicated that no red-legged frogs were found within the Phase 1 area. (Id.).

On October 15, 2002, the Service responded with a final letter, urging the Corps to reinitiate consultation, reiterating its belief that construction on the cut-across road had already resulted in take of the kit fox in excess of that allowed by the Biological Opinion, and that indirect effects associated with the cut-across road will result in further take of the kit fox in excess of that permitted by the Biological Opinion. (A.R.06398-403). The Service also noted that the Corps did not consult with it for the Phase 1 development area, but only the cut-across road in the Biological Opinion. (See A.R. 06401). According to the Service, red-legged frogs have' been observed immediately north of the Phase 1 development site in Del Puerto Creek and in the Orestimba Creek drainage, located partially within Diablo Grande property in the south. (A.R.06396). The Service advised that because red-legged frogs are known to migrate two miles without regard to topography or vegetation types, the two known populations at Del Puerto Creek and Orestimba Creek may use areas at the proposed cut-across road and Phase 1 development site; thus, the Service concluded that consultation was necessary as the development of Phase 1 and the cut-across road “likely will result in take of the red-legged frog.” (Id.). Also, the Service noted that one of the surveys relied upon by the Corps did not follow Service protocol, and the other was done at a time when Salado Creek was dry. (Id.).

Plaintiffs filed their complaint on May 9, 2003 alleging seven claims for relief: (1) violation of NEPA and the APA by the Corps’s failure to prepare an EIS on Phase 1; (2) violation of NEPA and the APA by the Corps’s failure to prepare an EIS for Phases 1-5 of the Project; (3) violation of the CWA and the APA by the Corps’s failure to comply with section 404(b)(1) Guidelines for Phases 1-5 of the Project; (4) violation of section 7 of the ESA and the APA by the Corps’s failure to consult with the Service; (5) violation of section 7 of the ESA and the APA by the Corps’s failure to conserve listed species; (6) prohibited taking of the kit fox and the red-legged frog by the Corps in violation of section 9 of the ESA and the APA; (7) prohibited taking of the kit fox and the red-legged frog by Diablo Grande in violation of section 9 of the ESA. (Cmpl.1ff 111— 39).

Plaintiffs request that the court set aside the permit, and enjoin the Corps from issuing any new permit for dredge and fill associated with any portion of the Project until the Corps prepares an EIS on the entire Project and consults with the Service on impacts to the kit fox and the red-legged frog. Plaintiffs also request that the court enjoin Diablo Grande from any further construction activity on the remainder of Phase 1 or on Phases 2-5 until the Corps has issued a valid new permit and Diablo Grande has received an incidental take permit for Phase 1 of the Project individually, and Phases 1-5 of the Project together. Plaintiffs also seek a preliminary injunction pending completion of this litigation, and pending any further environmental review the court finds necessary. (Cmpl. at 35-37).

II. Discussion

A. Standard for Summary 'Judgment

The court must grant summary judgment to a moving party “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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party adverse to a motion for summary judgment may not simply deny generally the pleadings of the movant; the adverse party must designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Simply put, “a summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). The non-moving party must show more than a mere “metaphysical doubt” as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Agency Action — Claims 1 through 6

Plaintiffs’ first six claims, relating to the Corps’s failure to produce an EIS, the decision to issue a permit for the dredge and fill of United States waters, and violations of the ESA, all necessitate review of the actions of an administrative' agency. Judicial review of actions by administrative agencies is governed by 5 U.S.C. § 706(2)(A), which states that a reviewing court must set aside agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” See Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1114 (9th Cir.2000) (applying the “arbitrary and capricious” standard to the agency’s decision not to prepare an EIS); Friends of the Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir.1986) (applying the “arbitrary and capricious” standard to the agency’s decision to issue a section 404 permit under the CWA); Pacific Coast Fed’n of Fishermen’s Ass’ns. Inc. v. United States Bureau of Reclamation, 138 F.Supp.2d 1228, 1239 (N.D.Cal.2001) (applying the “arbitrary and capricious” standard to review of an agency’s action under the ESA); Arizona Cattle Growers’ Ass’n v. United States Fish and Wildlife, 273 F.3d 1229, 1235-36 (9th Cir.2001) (“Judicial review of administrative decisions involving the ESA is governed by section 706 of the APA”); Sierra Club v. Glickman, 67 F.3d 90, 95-96 (5th Cir.1995) (holding the “arbitrary and capricious” standard applies to section 9 claims under the ESA against a federal agency).

This standard is a “deferential standard ... designed to ensure that the agency considered all of the relevant factors and that its decision contained no clear error of judgment.” Pacific Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.2001) (internal quotations omitted). An agency action should only be overturned when 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.” Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The court must ask whether the agency considered “the relevant factors and articulated a rational connection between the facts found and the choice made.” Natural Resources Def. Council v. United States Dep’t of the Interior, 113 F.3d 1121, 1124 (9th Cir.1997). The court is not empowered to substitute its judgment for that of the agency. Arizona Cattle, 273 F.3d at 1236 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The task of the reviewing court is to apply the arbitrary and capricious standard of review to agency actions based on the administrative record presented by the agency to the court. Citizens to Preserve Overton Park, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136.

1. NEPA

NEPA is “our basic national charter for protection of the environment ... [i]t establishes policy, sets goals ... and provides means for carrying out the policy.” 40 C.F.R. § 1500.1(a). NEPA “does not set out substantive environmental standards, but instead establishes ‘action-forcing’ procedures' that require agencies to take a ‘hard look’ at environmental consequences.” Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir.2000) (citations omitted). To this end, NEPA requires that an EIS be prepared for all “major Federal actions significantly affecting the quality of the human environment.” Id. (quoting 42 U.S.C. § 4332(C)). The NEPA implementing regulations promulgated by the Council on Environmental Quality (“CEQ”) define major federal actions to “include new and continuing activities, including projects ... regulated, or approved by federal agencies.” 40 C.F.R. § 1508.18(a).

If, as is the case here, an agency’s regulations do not categorically require the' preparation of an EIS, the agency must then first prepare an EA to determine whether the action will have a significant effect on the environment. 40 C.F.R. § 1501.4. An EA is a “concise public document for which a Federal agency is responsible that serves to ... [bjriefly 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). NEPA regulations require that the preparation of an EA “involve environmental agencies, applicants, and the public, to the extent practicable, in preparing, assessments .... ” 40 C.F.R. § 1501.4(b). If, in light of the EA, the agency determines that its action will significantly affect the environment, then an EIS must be prepared; if not, then the agency must issue a FONSI, “accompanied by a convincing statement of reasons to explain why a project’s impacts are insignificant.” Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1022 (9th Cir.2003) (quotations omitted) cert. granted, 540 U.S. 1088, 124 S.Ct. 957, 157 L.Ed.2d 793 (Dec. 15, 2003) (on question of jurisdiction); see Metcalf, 214 F.3d at 1142; 40 C.F.R. §§ 1501.4, 1508.9.

The CEQ regulations define the crucial phrase “significantly affect” to clarify the situations in which an agency must prepare an EIS. As used in NEPA, “significantly” requires considerations of both context, which refers to the society, region and locality of the proposed project, and intensity, which refers to the severity of impact. Pub. Citizen, 316 F.3d at 1022-23; 40 C.F.R. § 1508.27.

A reviewing court is not permitted to substitute its judgment for that of the agency, but rather must “simply ... ensure that [the agency] has adequately considered and disclosed the environmental impacts of its actions.” Pub. Citizen, 316 F.3d at 1021 (quotations omitted). Thus, the court must defer to an agency’s decision to not to prepare an EIS if it is fully informed and well-considered. Id.

Here, plaintiffs contend that the Corps’s failure to prepare an EIS prior to issuing a permit for development of Phase 1 and failure to prepare an EIS for the entire Project, Phases 1-5, was arbitrary and capricious. Plaintiffs argue that an EIS was required given the: (1) impact on wetlands and ecologically critical areas; (2) substantial controversy about the potential impacts of the proposed action; (3) significant cumulative impacts on the environment; (4) consideration of connected actions; and (5) significant impact on endangered and threatened species.

(i) Impact on Wetlands and Ecologically Critical Areas

The CEQ regulations provide that one factor that contributes to the determination of a proposed action’s “significant effects” is whether the project area has “[u]nique characteristics ... such as proximity to ... wetlands, wild and scenic rivers, or ecologically critical areas.” 40 C.F.R. § 1508.27(b)(3). As evidence of the unique characteristics of the Phase 1 area, plaintiffs point to the EPA’s October 27, 1998 letter to the Corps in response to public notice of the permit application, in which the EPA stated that “discharges associated with this project will have substantial and unacceptable impact on aquatic resources of national importance” and recommended preparation of an EIS. (A.R.02267) (emphasis in original). Plaintiffs also point to an August 1999 letter from the EPA to Senator Dianne Fein-stein, in which the EPA described the entire Project area as “encompassing a rare collection of unspoiled watersheds” and specifically pointed to the Phase 1 site as containing the Salado Creek watershed. (A.R.03621). Finally, plaintiffs direct the court to two post-permit issuance EPA documents in which the EPA discussed the importance of wetlands at the Phase 1 site, stating that the waters at the Phase 1 site “perform twelve interrelated hydrologic, biogeochemical, and habitat support functions,” and that “the overall functional capacity of waters within Phase 1 is high.” (A.R. 05442; A.R. 05121).

Here, as the EA noted, after the EPA requested elevation of the permit decision to the ASACW, the ASACW reviewed “the concerns raised[,] ... the District’s decision documents and draft permit, ... information provided by the applicant, and conducting an on-site inspection” and determined that “the aquatic resources located within the boundary of Phase 1 are not of national importance, and no substantial and unacceptable adverse impacts will result from the District’s proposed permit.” (A.R.05265). As described in the EA, the ASACW determined that the waters af-feeted by the proposed project “are primarily ephemeral drainages. The habitat value of these drainages is not substantially different than the surrounding uplands.” (A.R.05380).

The administrative record demonstrates that the Corps closely considered the EPA’s opinion, undertook its own evaluation, and drew a different conclusion regarding the impact to the wetlands on the project site and the uniqueness of the geographic features of the project site. See Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992) (“When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive .... Once [the court is] satisfied that an agency’s exercise of discretion is truly informed, we must defer to th[at] informed discretion”).

Moreover, the EPA and Diablo Grande entered into an “Agreement Regarding the Diablo Grande/Oak Flat Village Section 404 Permit” (A.R. 05272) in which Diablo Grande agreed to permanently protect all lands located in the “Sawtooth” area (amounting to 1,230 acres), which contains a portion of the Orestimba Creek and its tributaries. (Id.; A.R. 05280-81). The EPA agreed that “protection of the Additional Mitigation Lands (the “Sawtooth” area) as a condition of the Permit in combination with the mitigation currently included in the Permit will fully and completely compensate for all direct, indirect and cumulative impacts to aquatic resources associated with the Permit.” (Id.). Thus, evidence in the administrative record demonstrates that impact to any unique area of the project site was mitigated.

The EA also demonstrates that the Corps considered the characteristics of the waters affected by the permit. The EA describes the “affected waters of the U.S. in the Phase 1 and access road areas [as] ... primarily within the Salado Creek watershed” including “intermittent streams, seasonal wetlands, stock ponds, and alkali seép.” (A.R.05353). According to the EA, “[m]any of the stream beds have been degraded ... [and][t]he ephemeral stream beds carry water only during and after major storm events.” (A.R.05354). The EA also provides a description of the physical characteristics of the waters, including the substrate, currents and drainage patterns, turbidity, water quality, storm and erosion buffers, erosion, aquifer recharge, and baseflow functions as well as a “concise description of impacts” to these characteristics. (A.R.05362).

Accordingly, the Corps was not arbitrary and capricious in its determination regarding the impacts to the unique characteristics of the affected area.

(ii) Substantial Controversy about Potential Impacts

In determining the significance of a proposed action’s effects on the environment, an agency must evaluate “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). A controversy sufficient to require preparation of an EIS occurs “when substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor, or there is a substantial dispute [about] the size, nature, or effect of the major Federal action.” Nat'l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 736 (9th Cir.2001). A substantial dispute exists when evidence, raised prior to the preparation of an EIS or FONSI casts serious doubt upon the reasonableness of an agency’s conclusions. See Greenpeace Action, 14 F.3d at 1334 (holding that a party may not establish controversy post hoc, when at the time of the agency’s action no controversy existed). This procedural requirement is a natural consequence of the fact that “NEPA exists to ensure a process, not to ensure any particular result.” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 960 (9th Cir.2003) (quotation omitted and emphasis in original). The controversy requirement is two-fold: the plaintiffs must show that there was a “substantial dispute” about the agency’s actions, and that this dispute raised “substantial questions” about the validity of the actions. Pub. Citizen, 316 F.3d at 1027. “An outpouring of public protest” has been held to satisfy the requirement of “substantial dispute.” Id. NEPA then places the burden on the agency to come forward with a “well reasoned explanation” demonstrating why those responses do not suffice to create a public controversy. Nat’l Parks, 241 F.3d at 736.

Here, the administrative record does not clearly evidence an “outpouring of public protest.” Rather, the Corps received comments from only five sources: the EPA, Stanislaus County, the Service, and two neighboring landowners. Here, only the EPA and the Service opposed the proposed action. Cf. Pub. Citizen, 316 F.3d at 1027 (over 90 percent of the comments opposed the proposed agency action); Greenpeace Action, 14 F.3d at 1334 (over 85 percent of the public comments opposed the proposed agency action). Nonetheless, given the agencies’ expertise in environmental issues, the court considers that the first requirement has been met.

The substance of the EPA and the Service’s comments satisfy the requirement of “substantial questions” of the validity of the proposed action because the negative comments offered real criticism of the Corps’s permit. The EPA “strongly” objected to the project, expressing concern that: (1) an EIS should be prepared for the entire Project; (2) the cumulative impacts were not adequately addressed; (3) the proposed mitigation was insufficient; (4) that the development would result in significant degradation of the aquatic environment; and (5) the analysis of alternatives to the project was inadequate. (See A.R. 02121; A.R. 02560-2565; A.R. 03619-20). The Service responded to the Public Notice with two letters in October 1998, reiterating the concerns expressed by the EPA, and additionally (1) advising that Diablo Grande had yet to comply with the terms of the Biological Opinion and expressing concern regarding excess take of the kit fox, (A.R.07158); and (2) instructing the Corps to conduct “appropriate surveys” and initiate consultation on the threatened California red-legged frog, “if the frog or any other special status species is identified to be present on the development site.” (A.R.02264).

In its EA, the Corps not only described each of these concerns (A.R. 05377-78), but addressed each one, providing reasons as to why it declined to act on the Service’s comments, and thus, why no controversy regarding the issues brought out by the agency’s comments existed.

With respect to the treatment of the Project in its entirety in assessing impacts to the environment, the Corps noted that “Phases 2-5, currently, do not have local entitlements and development of those phases may occur over the next 25 to 30 years or not at all. Development of these phases cannot be considered to be reasonably foreseeable and their impacts cannot be evaluated.” (A.R.05379).

The Corps described the cumulative effects of the proposed project as resulting in “inadequate buffering of creek corridors, introduction of non-native species, and other effects of urbanization.” (A.R. 05375). However, the Corps also explained that the cumulative impacts from implementation of the Phase 1 area would be “relatively insignificant if mitigated.” (A.R.05376).

In response to concerns about the development of mitigation plans, the Corps stated that Diablo Grande modified the project to incorporate two additional preserve areas in order to address .secondary and indirect affects to United States waters. The first is a 1230 acre area containing 15.5 acres of waters, and the second is a 1035 acre area containing a portion of Orestimba Creek. (A.R.05380). These two additional areas are in addition to the construction of 15.21 acres of waters to mitigate for the loss of 9.08 acres of waters at the Phase 1 site. (A.R.05353-57)

As discussed earlier, the ASACW reviewed the project following the EPA’s request to elevate discussions of its concerns with the proposed project, and determined that the EPA’s concerns were adequately addressed. Moreover, the EPA and Diablo Grande subsequently reached an agreement on a mitigation plan. The EPA stated that “protection of the Additional Mitigation Lands (the “Sawtooth” area) as a condition of the Permit in combination with the mitigation currently included in the Permit will fully and completely compensate for all direct, indirect and cumulative impacts to aquatic resources associated with the Permit.” (A.R.05270). Thus, during the review process, Diablo Grande was able to address potential effects on ‘United States waters to the satisfaction of the EPA. See Wetlands Action, 222 F.3d at 1122 (determining that the Corps did not commit a clear error in judgment when it decided that its action was not controversial where the Corps was able to address the concerns of the other federal resource agencies during the two year review process). As the administrative record evidences no EPA objections after the mitigation agreement, it appears that the EPA withdrew its objection to the permit.

In response to concerns regarding analysis of project alternatives, the Corps stated in the EA that Diablo Grande provided the information on alternatives requested by the EPA and the Service. (A.R. 05379; see also A.R. 02560-71). The EPA disagreed with this analysis of alternatives. (A.R.02560-71). However, the Corps has discretion to rely on the reasonable opinions of its own qualified experts. Greenpeace Action, 14 F.3d at 1332. In the EA, the Corps explained that Diablo Grande considered four locations for the Project, but dismissed each on factors such as being located in multiple counties, topography, elevation, and proximity to transportation corridors. The Corps further stated that, using the information provided by Diablo Grande, it determined that one of the alternative locations could have resulted in more impact to the environment. (A.R. 05357-58; 05379); see also Friends of the Earth v. Hintz, 800 F.2d 822, 834-35 (9th Cir.1986) (“An EA may be based entirely upon information supplied by the applicant and indeed may be prepared by an outside consulting firm”). The Corps stated that it considered other project designs for both the Phase 1 development and the cut-across road, including small incremental reductions in fill and project realignments. Three alternative alignments were considered for the cut-across road, each dismissed based on failing to meet county safety standards, increased costs, and conflicts with existing facilities. (A.R.05357-58, 05379-80). Finally, in response to the agency comments, further modifications were made to the project that resulted in increased avoidance. (A.R.05380).

The Corps demonstrated that no controversy existed with regard to Diablo Grande’s compliance with the Biological Opinion because Diablo Grande fulfilled its terms and conditions. (A.R.05368). In demonstrating that no controversy existed with regard t'o impact on the red-legged frog, the Corps explained that it complied with the Service’s request for surveys on the presence of the red-legged frog at the project site. Although the Corps noted that red-legged frogs were observed in the general vicinity of the project site, the surveys found no red-legged frogs at the site. (A.R. 05369; 05380).

Plaintiffs also appear to suggest that the state litigation, brought under the California Environmental Quality Act, demonstrates ongoing public controversy. However, it is not clear that the state litigation concerned the “size, nature and effect” of the proposed project, but instead addressed the adequacy of the local procedures followed in obtaining the Supplemental Environmental Impact Report approved in 1998. (A.R.04848). Also, any controversy represented by the state litigation would also have been resolved by the state litigation.

Accordingly, the court finds that the Corps was not arbitrary and capricious in determining that no controversy existed for the purposes of NEPA.

(iii) Cumulative Impacts and Connected Actions

Plaintiffs argue that Phases 2-5 of the Project will have cumulative impacts on the permitted development of Phase 1 and that the EA is inadequate because it does not address these cumulative impacts. Alternatively, plaintiffs argue that Phases 1-5 of the entire Project are “connected actions” that must be evaluated together in a single EA; thus, the EA is inadequate because it does not address these connected actions. Because analysis to determine if an EA must include “cumulative impacts” overlaps heavily with the analysis for inclusion of “connected actions,” the court-addresses both together. See, e.g., Wetlands Action, 222 F.3d at 1118-19; Save the Yaak Comm. v. Block, 840 F.2d 714, 719-21 (9th Cir.1988).

The CEQ regulations provide that an agency must consider “connected actions” and “cumulative actions” within a single EA. Wetlands Action Network, 222 F.3d at 1118 (citing 40 C.F.R. § 1508.25). A connected or cumulative action must be considered together to prevent an agency from dividing a project into multiple actions, each of which individually has an insignificant environmental impact, but which collectively have a substantial im7 pact. Id. Actions are connected if they “[automatically trigger other actions which may require environmental impact statements^] ... [cjannot or will not proceed unless other actions are taken previously or simultaneously [, or] ... [a]re interdependent parts of a larger action and depend on the larger action for their justification.” 40 C.F.R. § 1508.25(a). Cumulative actions are those “which when viewed with other proposed actions have cumulatively significant impacts.” 40 C.F.R. § 1508.25(a)(2). A cumulative impact is “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions .... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7.

To determine whether an agency is required to consider multiple actions — either cumulative or connected— in a single NEPA review pursuant to the CEQ, the court applies an “independent utility” test. Wetlands Action, 222 F.3d at 1118. Actions have independent utility when each of the two projects would have taken place with or without the other. Id.; see Morongo Band of Mission Indians v. FAA 161 F.3d 569, 580 (9th Cir.1998) (even where the second project would exacerbate the problems addressed by the proposed project, the agency did not improperly segment NEPA review by treating the proposed project alone because each had independent utility). The whole of a project must be considered together when the “dependency is such that it would be irrational, or at least unwise to undertake the first phase if subsequent phases were not also undertaken.” Trout Unlimited v. Morton, 509 F.2d 1276, 1285 (9th Cir.1974). In Wetlands Action, the court determined that the first phase of a development project that included construction of five million square feet of office space, 13,000 dwelling units, a hotel, and retail space had independent utility because it “[did] not depend upon the completion of the later phases of the project,” which included the restoration of a marsh and development of a marina. Wetlands Action, 222 F.3d at 1119. Similarly, here, Phase 1 does not depend on the later phases of the Project such that it would be irrational to undertake Phase 1 alone. Phase 1 includes 2,000 homes, a town center, shopping center, public services, hotel and conference center, resort complex, an open space area of about 1,160 acres (including two golf courses), and a road system; it is a community unto itself.

In support of their claim that the cumulative-impacts of Phases 2-5 should have been considered in the EA pertaining to development of Phase 1, plaintiffs cite Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th. Cir.1998). In Blue Mountains, the court determined that five related timber sales, announced simultaneously to a group of logging companies, had to be considered in a single NEPA analysis. Id. at 1214-16. Unlike the -situation in Blue Mountains, here, decisions regarding Phases 2-5 of the Project have yet to be made. Like the situation in Wetlands Action, Phases 2-5 have yet to receive the required county approvals to begin development. Wetlands Action, 222 F.3d at 1119. Although, in 1992, the County issued a draft Environmental Impact Report (“EIR”) and approved a Specific Plan for the entire Project, approval for the Specific Plan for Phases 2-5 were rescinded following state court litigation. (See Diablo Grande’s SUF ¶ 6; A.R. 04828). Thus, Phases 2-5 were not reasonably foreseeable. See Wetlands Action, 222 F.3d at 1119 (where planning decisions and authorizations for the later phases of the development had yet to be completed, the court , determined that “finding that the Corps was required ... to have analyzed the environmental impacts of the three phases in a single EA ... would require the government to do the impractical.”); cf. Save the Yaak, 840 F.2d at 721 (both connected and unrelated actions can result in cumulative impacts, but the actions must be reasonably foreseeable). In the EA, the Corps explained that Phases 2-5 “may occur over the next 25 to 30. years or not at all.” (A.R.05379). Based on the lack of an approved Plan for Phases 2-5, it was not arbitrary and capricious for the Corps to conclude that “[d]e-velopment of these phases cannot be considered to be reasonably foreseeable and their impacts cannot be evaluated.” (Id.).

Consideration of cumulative impacts requires some “quantified or detailed information;” the agency must provide a “useful analysis of the cumulative impacts of past, present, and future projects.” Kern v. United States Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir.2002). Here, the EA includes a description of the work done pursuant to NWPs in the past, including two golf courses, a parkway, and water pipeline. The EA also describes the proposed action, development of the Phase 1 residential areas and the cut-across road. In addition, the EA provides a detailed summary of the impacts resulting from the previous NWPs and the mitigation Diablo Grande provided for those impacts. (A.R. 05353-57). The EA also provides a section summarizing secondary and cumulative effects, in which it considered the effect of the total impacted water to-date and the entire 2300 acres affected by the project date upon completion of the Phase 1 development. (A.R.05375). Additionally, the section contains a list of all the potential cumulative impacts from the Phase 1 development. (A.R.05375-76).

Accordingly, the court finds that the Corps was not arbitrary and capricious in determining that Phases 2-5 need not be considered in the EA, nor in its consideration of cumulative effects.

(iv) Consideration of Endangered and Threatened Species

Plaintiffs argue that the Corps’s discussion in the EA of the potential impact to the kit fox and the red-legged frog cannot support the conclusion that the project will not jeopardize any federally listed threatened or endangered species. (A.R. 05381). The CEQ regulations mandate that an agency evaluate “[t]he degree to which the action may adversely affect an endangered or threatened species” when determining whether an action will significantly affect the environment. 40 C.F.R § 1508.27(b)(9).

Prior to the issuance of the permit, and as required by the ESA, the Corps initiated consultation with the Service regarding the kit fox. In response, the Service issued its Biological Opinion. (A.R.00808). Because the Service, in creating the Biological Opinion, considered the effects of the construction of the entire Project on the kit fox, the Biological Opinion encompassed consideration of the impact as a result of development of Phase 1. (A.R. 00808, 00811). In concluding that the permit would not likely jeopardize the kit fox, the Biological Opinion cited numerous surveys of Oak Flat Valley that observed no kit foxes at the project site. (A.R.00810).

The Biological Opinion permitted the take of one kit fox in the form of being harmed or killed, and determined that the number of kit fox “subject to harassment from noise, vibrations, and capture or excavation of dens and burrows to be impracticable to estimate.” (A.R.00814). To be exempt under this incidental take statement, Diablo Grande was' required to fulfill several terms and conditions including establishment of a conservation preserve and implementation of plans to protect and minimize the impacts of habitat loss and fragmentation to the kit fox. (A.R.00814-15). In the EA, the Corps noted that, in accordance with the Biological Opinion, Diablo Grande completed the purchase and preserve of the 125 acres of mitigation lands required and implemented the Standardized Recommendations for Protection of the San Joaquin Fox. (A.R.05367-68). The EA stated that Diablo Grande complied with the conditions of the Biological Opinion. (A.R.05380).

In its letter of October 8, 1998, the Service stated that it “believes that unauthorized take of [the kit fox] may be occurring as a result of the Diablo Grande project,” however, the Service offered no evidence that kit fox had been observed at the project site. (A.R.07158-59). In the EA, the Corps explained that no kit foxes were observed in any of the 1991, 1992, and 1993 surveys conducted on the project site, access roads, or project vicinity. (A.R. 05367). Surveys were conducted in accordance with recommended Service methodology. Survey techniques employed included scent stations, spotlighting, ground transects, and remote camera stations. (A.R.05367). However, the EA acknowledged that two kit foxes were observed approximately five miles east of the project site, and that the project site is accessible to kit foxes. (A.R.05367-68).

Prior to the issuance of the permit, the Service only requested that the Corps conduct appropriate surveys to determine whether red-legged frogs are present at the project site; if the red-legged frog was found, the Service recommended initiation of consultation. (A.R.2264). The administrative record demonstrates that Diablo Grande completed a survey regarding the red-legged frog, the summary for which was produced in February 1999. (A.R. 02429-41; 05380). In the EA, the Corps responded to the Service’s direction to identify if red-legged frogs are present on the project site, stating that “[n]o red-legged frogs were observed in the Phase 1 area or along the access roads” and noting the observations of red-legged frogs in the general vicinity of the project site. (A.R. 05369).

Accordingly, the court determines that the Corps’s consideration of the possible effects on federally listed species was not arbitrary and capricious.

In conclusion, plaintiffs have failed to establish that the Corps’s decision not to prepare, an EIS before issuing the permit was arbitrary and capricious.

2. Clean Water Act

The CWA is designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve this goal, under the section 404 permitting program, the CWA prohibits discharge of any dredged or fill material into navigable waters of the United States unless authorized by a CWA permit. 33 U.S.C § 1344. Section 404(a) authorizes the Secretary of the Army (“Army”), acting through the Corps, to issue permits for the discharge of dredged or fill material to United States waters. In reviewing each permit application, the Army must apply guidelines (“Guidelines”) developed by the EPA in conjunction with the Army pursuant to section 404(b)(1) and published at 40 C.F.R. § 230. ' Pursuant to 33 C.F.R. § 320.4(a)(1), before issuing a permit, the Corps must engage in a “public interest review.”

Plaintiffs contend that the Corps’s issuance of the permit for construction of the cut-across road and development of Phase 1 was arbitrary and capricious. Plaintiffs raise three specific objections to the Corps’s decision to grant the permit: (1) the Corps failed to analyze the cumulative impacts of the Project; (2) the Corps failed to give full consideration to the views of the Service; (3) the Corps failed to evaluate the impact of the Project on listed species.

(i) Cumulative impacts

Both the Corps’s own regulations, and the EPA’s section 404(b) (1) Guidelines require the Corps to analyze the cumulative effects of its permitting decisions. See 33 C.F.R § 320.4(a)(1); 40 C.F.R. § 230.10(c). Pursuant to the Guidelines, no permits shall be issued that “will cause or contribute to significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c). Determinations of the effects of each proposed discharge “shall include ... [cumulative eff