Florida Wildlife Federation v. United States Army Corps of Engineers (401 F. Supp. 2d 1298, 2005)

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

MIDDLEBROOKS, District Judge.

THIS CAUSE comes before the Court upon Defendants’ Motion for Summary Judgment (DE 39), filed August 8, 2005; and Plaintiffs’ Motion for Summary Judgment (DE 41), filed August 8, 2005. The Court has considered the parties’ filings, as well as the Brief Amici Curiae of Palm Beach County and The Scripps Research Institute. (DE 48.) A hearing on the parties’ motions was held on September 26, 2005, where the parties and intervenors were heard.

In this action, the Florida Wildlife Federation and Sierra Club (collectively “Plaintiffs”) challenge the issuance of a permit by Defendant U.S. Army Corps of Engineers to Palm Beach County, allowing the filling of federally regulated wetlands for the development of a joint project between Palm Beach County and The Scripps Research Institute, known as the Palm Beach County Biotechnology Research Park, on a property known as Mecca Farms. The permit allows for the development of 535 acres of the 1,919 acre Mecca Farms parcel designated for the Research Park. Plaintiffs allege that the Corps’ decision to issue the permit violated the National Environmental Policy Act (NEPA), • the Federal Clean Water Act (CWA), and the Rivers and Harbors Act of 1899. Plaintiffs ask the Court to find that the permit issued is invalid and to require the Corps to prepare an Environmental Impact Statement taking into account the entire scope of the planned development.

Plaintiff Florida Wildlife Federation (FWF) is a private, state-wide non-profit citizen’s conservation education organization, with more than 1,000 members that live, own property or work in Palm Beach County. Plaintiff Sierra Club, Inc., is a non-profit organization interested in the protection and restoration of the natural and human environment, with approximately 30,000 members in the State of Florida.

Defendant U.S. Army Corps of Engineers is the agency of the federal government that issued the permit now being challenged. Defendant Colonel Robert M. Carpenter is the District Engineer of the Jacksonville District, and is sued in his official capacity.

Amici Curiae Palm Beach County and The Scripps Research Institute are contractually bound to build the proposed Biotechnology Research Park on the Mecca Farms property. A.R. 1628. Palm Beach County is the owner of the Mecca Farms site, and the Applicant for the permit now challenged. The Scripps Research Institute is an internationally recognized nonprofit research organization, specializing in biomedical research into a number of areas, including molecular and cellular biology, chemistry, and synthetic vaccine development. Based in La Jolla, California, Scripps is located in a biotechnology cluster that includes other facilities such as the Salk Institute and the Burnham Institute.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question); 5 U.S.C. §§ 702 and 706(1), (2)(A), (C), (D) (Administrative Procedures Act); 28 U.S.C. § 1361 (mandamus); and 28 U.S.C. § 2201 (Declaratory Judgment Act).

Venue is proper in this district under 28 U.S.C. § 1391(b), as the actions giving rise to this claim occurred in the Southern District of Florida, and 28 U.S.C. §’ 1391(e) because it is a civil action against an agency and an officer of an agency of the United States acting in his official capacity under 5 U.S.C. § 703.

The Court has reviewed the record and is otherwise fully advised in the premises. The Court makes the following findings of fact and conclusions of law.

1. BACKGROUND

A. The Palm Beach County Biotechnology Research Park

On October 8, 2003, The Scripps Research Institute (“Scripps”) announced plans to open a major East Coast science center in Florida, focusing on biomedical research, technology development, and drug design. A.R. 351.

Several sites were assessed to accommodate not only the Scripps Florida facility, but also new biotech research centers and related businesses expected to follow, as well as support facilities, including commercial services, educational facilities, civic uses, and residential development for the workforce. A.R. 351.

Ultimately, the Mecca Farms site, located in Palm Beach County, was selected. The Palm Beach County Business Development Board (BDB) acquired land rights for the site, consisting of the 1,919 acre Mecca Farms.

On November 18, 2003, Palm Beach County and the Florida Office of Tourism, Trade, and Economic Development (OT-TED) entered into a Memorandum of Agreement to allow for Expedited Permitting Review for the Mecca Farms site. A.R. 156. By December 18, 2003, the Army Corps of Engineers agreed to try to work with the County in an expeditious manner as well. A.R. 10.

In February 2004, Palm Beach County acquired land rights to the 1,919 Mecca Farms site, allowing the County to act as agent for the property owner and to submit applications for any changes in land use and zoning, and submit applications for any and all development approvals and permits. A.R. 172.

The County then filed with the State’s OTTED a “Project Description Form for Expedited Permitting Review for the proposed Palm Beach County Biotechnology Research Park to be located on approximately 1,920 acres in northwestern Palm Beach County.” A.R. 183-12.

Palm Beach County, the project’s Master Developer, described the Research Park as a multiple use development plan for approximately 1,920 acres of property, with Scripps as its centerpiece. A.R. 166-65. The County touted Scripps’ “proven business model” which includes “developing a biotech/pharma industry cluster that has led to the start up of more than 40 high-tech businesses.” A.R. 169. The County described the benefits of economic clustering, which is the location of industries in a particular geographic area in order to take advantage of labor pools or to gain convenient access to highly specialized services that are present to service the needs of an anchor business, such as, in this case. Scripps. A.R. 168. The County anticipated that Scripps’ success in developing a biotech/pharma industry cluster in San Diego County could be replicated in Palm Beach County, at an even faster pace than that which was the case in California. A.R. 169. Palm Beach County noted that biotechnology has been described as the first global “gold rush” of the 21st-century. A.R. 168.

In March 2004, the OTTED certified the Research Park Project for Florida’s Expedited Permitting Process pursuant to Florida law. A.R. 188. The Army Corps of Engineers attended the pre-application meeting for all interested agencies and parties. A.R. 2683.

On May 10, 2004, Palm Beach County submitted an Application for Development Approval (ADA) for the Palm Beach County Biotechnology Research Park Development of Regional Impact (DRI) to the Treasure Coast Regional Planning Council (TCRPC) pursuant to Florida law. A.R. 270-299. This comprehensive document addressed a number of projections related to the Research Park development over its 30-year build out schedule, including revenue, environmental resource impacts, transportation, human resource impacts (housing, police and fire rescue, recreation and open space, education, employment, health care, energy), airports, mining operations, schools and hospitals. A.R. 270-387; 489-792; 979-1046.

The County announced that “[t]he arrival of [Scripps] in Palm Beach County could prove to be as significant to South Florida’s economy as the arrival of Henry Fla-gler’s railroad a century ago.” A.R. 330.

The State of Florida agreed to provide $310 million of economic stimulus funds over a period of seven years. Palm Beach County pledged to spend up to $200 million to provide land, infrastructure and buildings for the new Scripps Florida facility, paying $60 million for the 1,919 Mecca Farms site. A.R. 351. While the Scripps facility would occupy 102.03 acres, other portions of the property would be used to enhance surrounding ecosystems, meet water management goals, and buffer nearby residential properties. A.R. 351. The remaining property would be made available to other biotech-related companies and support facilities, “enabling the County to recover costs associated with the project.” A.R. 351.

B. Mecca Farms

Mecca Farms was historically part of the Hungryland Slough, and predominately wetland. A.R. 2686. Located in Palm Beach County, Mecca Farms is bordered to the west by the J.W. Corbett Wildlife Management Area, to the north by Hun-gryland Slough and active orange groves, to the east by undeveloped private land, and to the south by an active orange grove and residential development. A.R. 2686. Unit 11 Hungryland Slough and the J.W. Corbett Wildlife Management Park are preserved as conservation/ environmentally sensitive lands. A.R. 2633.

The July 1999 Loxahatchee River Basin Wetland Planning Project for Palm Beach County stated that the Vavrus Ranch (to the east of Mecca Farms) is one of the largest areas containing wetlands that have not been protected. A.R. 2661. In addition, the undeveloped land to the north may be prime foraging and/or nesting habitat for many endangered species including wood storks, peregrine falcons, bald eagles, Audobon’s crested caracaras, and snail kites. A.R. 2643. The J.W. Corbett Wildlife Management Area could contain similar species. Id.

The Mecca Farms site was most recently an active citrus grove. The site was zoned Agricultural Residential in part and Special Agriculture in part, and had a Future Land Use designation of Rural Residential 10, which would allow up to one dwelling unit per 10 acres. A.R. 156.

To prepare the site for agriculture, ditches were constructed in place of historic flow ways to drain the site. The agricultural ditches are present throughout the site every 360 feet, and run in a north-south orientation throughout. A.R. 2144. The ditches, which are permanently inundated, are connected to the C-18 Canal, a tributary of the Northwest Fork of the Loxahatchee River. A.R. 2687; 2642. The ditches are therefore considered waters of the United States. A.R. 2685.

C. The Permit Application

In order to build the Research Park development, the County requires a Section 404 permit from the U.S. Army Corps of Engineers (“the Corps”) to dredge and fill agricultural ditches on the Mecca Farms site under the Clean Water Act. 33 U.S.C. § 1344(a), (f)(2). The National Environmental Policy Act (“NEPA”) requires the Corps to consider whether its action would significantly affect the quality of the human environment before issuing the permit. 42 U.S.C. § 4332(2)(c).

In May or June 2004, Palm Beach County filed an application for the permit now being challenged. The proposal did not cover the entire Research Park development planned for the 1,919 acre site, but rather was limited to what the County called the Scripps Research Park, covering 535 acres of the site. The proposal included the construction of the Scripps Research Institute on 183 acres; a 30-acre town center with commercial and multifamily residential housing; a 27 acre clin-ie/hospital; a 15 acre utility site; three surface water management lakes totaling 87 acres; 3 acres of internal roads, 97 acres of upland hardwood forests, and 93 acres of open space A.R. 2686. As a result of the 535-acre project, approximately 21.3 acres of jurisdictional drainage ditches would be impacted. The existing open water quarry would also be expanded from its current size of 27.6 acres to 48 acres. A.R. 2686.

The County asked the Corps to evaluate its proposal to build “a 535-acre biotechnology research park” in the Mecca Farms site independently from the remaining future development on the 1,900 acre site, as well as from any future planned development in the nearby area because the biotechnology research park has independent utility from any future development. A.R. 2685-2684.

An alternative sites analysis was conducted, considering five alternative locations: Parcel 19; Palm Beach Park of Commerce; The Briger Parcel; The Riviera Beach CRA; and Florida Crystals site. A.R. 2670-2663.

In August 2004, the Corps published a Public Notice on the web, which was sent to all interested parties, including appropriate State and Federal agencies. A.R. 2682. In the Public Notice, the Corps announced that although it was aware that the County had plans to develop the remaining 1,365 acres of Mecca Farms, it believed that the 535 acre Project had “independent utility” from the larger Research Park Development because it could be constructed solely, without need for the remaining development. A.R. 1234.

The Corps’ public notice time frame was extended from September 4, 2004 to October 4, 2004, since two major hurricanes affected South Florida during the time the comment period would have closed. A.R. 2682.

During the comment period, the U.S. Environmental Protection Agency (EPA) raised concerns with the alternative sites analysis, water storage and conveyance to the North Fork of the Loxahatchee River, prior converted wetlands, appropriate mitigation, water quality issues, the ecological benefit of the project, secondary and cumulative effects, and the development of adjacent properties. A.R. 2682.

The U.S. Fish and Wildlife Service (FWS) requested that the Corps include a determination for the eastern indigo snake. The FWS concurred with the Corps’ subsequent determination that the project may affect but is not likely to adversely affect the eastern indigo snake, with construction precautions, and the woodstork. The FWS did not object to the issuance of the permit, but recommended that the Corps coordinate overall project planning with the Everglades Restoration Program and ensure a “no net loss” wetland policy. A.R. 2682-81.

The National Marine Fisheries Service (NMFS), Habitat Conservation Division, expressed concerns with secondary and cumulative effects, further development of adjacent properties, avoidance and minimization, appropriate mitigation, prior converted wetlands, and evaluation of direct and indirect impacts as a result of the project. A.R. 2681.

The Comprehensive Everglades Restoration Program (CERP) acknowledged that a portion of the Mecca Farms parcel is a potential site for a stormwater treatment area or a reservoir within the CERP North Palm Beach County PIR, but believed that the County’s agreement to provide a “flow way” that would transfer water to the C-18 Canal may allow a vital hydraulic conveyance to the Northwest Fork of the Loxahatchee River. A.R. 2680.

The State Historic Preservation Officer (SHPO) expressed no concerns with the project. A.R. 2681.

Several organizations, including Plaintiffs, and other interested parties and individuals responded to the public notice, expressing concerns including cumulative impacts, endangered species, historic resources, water quality, impacts to the Wild and Scenic River, Comprehensive Everglades Restoration Program (CERP), mitigation, alternative sites analysis, single and complete project, independent utility, cost to the taxpayers, development on adjacent properties, impacts to conservation lands, rate of development in Palm Beach County, secondary and cumulative impacts, watershed analysis, water resources, water supply, water storage, and compliance with the Palm Beach County Comprehensive Plan with Urban Development. A.R. 2681-80. The majority of com-menters objected to the issuance of the permit. A.R. 2638.

In October 2004, the County responded to the federal agency’s comments; in November 2004, the County responded to the Corps’ request for additional information. The Corps was satisfied with the responses. A.R. 2679.

During the pendency of the Corps permit application, the South Florida Water Management District (SFMWD) Governing Board approved an Environmental Resource Permit (ERP) permit for the entire 1,919 project. A.R. 1288-1302, 1305. The SFWMD also issued a permit titled “Conceptual Approval of a Surface Water Management System to Serve a 1919 Acre Project Known As the Palm Beach County Biotechnology Research Park and Construction and Operation of Phase 1A.” A.R. 2142. In addition, the Board of County Commissioners approved a zoning amendment that allowed a change in land use to support the entire development on Mecca Farms. A.R. 2640. Lastly, Palm Beach County issued a Resolution Approving the Palm Beach County Biotechnology Research Park DRI.

In February 2005, the Corps issued an Environmental Assessment in which it found that Palm Beach County had shown the independent utility of the project warranting evaluation of the proposal independently from the remaining future planned development, and concluded that the proposal would not have a significant impact on the environment. A.R. 2684. Finding no significant impact, the Corps did not prepare an Environmental Impact Statement, and issued the permit. A.R. 2630. Further, believing all issues raised during the comment process had been identified and resolved, the Corps determined that a public hearing, which had been requested by many commenters, was not needed or required. A.R. 2631-2630.

II. STANDARD AND SCOPE OF REVIEW

Summary judgment is appropriate only when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Under the Administrative Procedure Act (APA), the Court must “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).

Applying this standard, the Court must determine whether “the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 416, 91 S.Ct. 814; Marsh, 490 U.S. at 378, 109 S.Ct. 1851; North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533 (11th Cir.1990).

Although the Court must generally defer to agency determinations, the Court “must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.” Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir.1999) (citation omitted).

Agency action must be set aside if the agency relies on factors which Congress did not intend for it to consider, entirely fails to consider an important aspect of the problem, offers 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. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although the court’s review is to be searching and careful, the court cannot substitute its judgment for that of the agency’s. Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814.

When a court reviews a decision under the APA, “[t]he focal point for judicial review of an administrative agency’s action should be the administrative record.” Preserve Endangered Areas of Cobb’s History, Inc. (‘PEACH”) v. U.S. Army Corps of Eng’rs, 87 F.3d 1242, 1246 (11th Cir.1996)(citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). A court, however, “may consider additional evidence if it explains the record or if it addresses whether all relevant factors were considered.” Western North Carolina Alliance v. North Carolina Dep’t of Transp., 312 F.Supp.2d 765, 770 (citing Virginia Agricultural Growers Ass’n v. Donovan, 774 F.2d 89, 92 (4th Cir.1985)); See also Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir.1973)(District Court may rely on the record evidence if court makes a threshold determination that the information available to the agency did not adequately discuss the environmental effects and alternatives). In reviewing the Corps’ decision in this ease, the Court has not considered evidence beyond the administrative record that the Corps certified was before the agency when it made its decision.

III. THE CLEAN WATER ACT

The Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., is designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Under the CWA, dredged or fill materials are pollutants. 33 U.S.C. § 1362(6). Section 404 of the CWA authorizes the Corps to issue permits “after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters,” including wetlands, under specific circumstances. 33 U.S.C. § 1344.

When evaluating a permit application, the Corps must first evaluate whether the activity is water dependent. If the proposal is not water dependent, there is a presumption that practicable alternatives that do not involve special aquatic sites exist, unless clearly demonstrated otherwise. 40 C.F.R. § 230.10(a)(3). In addition, the Corps shall not issue a permit for the discharge of dredged or fill material “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a).

The Corps’ regulations provide that “Although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an application is made will be evaluated with the recognition that it may be part of a complete and interrelated wetland area.” 33 CFR § 320.4(b)(3).

If the permit applicant establishes that no less damaging, practicable alternative is available, the applicant must then show that all “appropriate and practicable steps” will be taken to minimize adverse effects of the discharge on the wetlands. 40 C.F.R. § 230.10(d). Only after showing that avoidance and minimization criteria have been met, can the Corps consider mitigation.

Pursuant to 40 C.F.R. § 230.5, the Corps, as the permitting authority should “[e]xamine practicable alternatives to the proposed discharge, that is, not discharging into the waters of the U.S. or discharging into an alternative aquatic site with potentially less damaging consequences; evaluate the various physical and chemical components which characterize the nonliving environment of the candidate site, the substrate and the water including its dynamic characteristics; identify and evaluate any special or critical characteristics of the candidate disposal site, and surrounding areas which might be affected by use of such site, related to their living communities or human uses; evaluate the material to be discharged to determine the possibility of chemical contamination or physical incompatibility of the material to be discharged; identify appropriate and practicable changes to the project plan to minimize the environmental impact of the discharge.”

The 404 Guidelines require the Corps to consider “both individual and cumulative impacts” of the proposed project, as well as practicable alternatives that would have less adverse impact on aquatic systems. 40 CFR § 230.6 and .10(a). The Corps must balance “benefits which reasonably may be expected to accrue from the proposal” against the proposal’s “reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a)(1).

The Corps’ regulations provide that “[although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an application is made will be evaluated with the recognition that it may be part of a complete and interrelated wetland area.” 33 CFR § 320.4(b)(3).

IV. THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

Congress enacted NEPA “to encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation[.]” 42 U.S.C. § 4321. In particular, Congress recognized “the profound influences of population growth, high-density urbanization, industrial expansion [and] resource exploitation on the natural environment” and “the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man.” 42 U.S.C. § 4331(a).

To these ends, NEPA requires federal agencies to consider “environmental amenities and values” in planning and decision-making which may have an impact on the environment. 42 U.S.C. § 4332; C.A.R.E. Now, Inc., v. Federal Aviation Admin., 844 F.2d 1569, 1572 (11th Cir.1988). NEPA establishes important “action-forcing” procedures to ensure that the “broad national commitment to protecting and promoting environmental quality” is “infused into” the actions of the federal government. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

In particular, the statutory requirement that an agency contemplating a major federal action prepare an environmental impact statement “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts[.]” It also serves the important purpose of making that information available to a larger audience that may also play a role in the decision-making process, assuring the public that the agency has considered all relevant environmental concerns in its decision-making, and “providing] a springboard for public comment.” Robertson, 490 U.S. at 349, 109 S.Ct. 1835.

Perhaps most importantly, by focusing an agency’s attention on the environmental consequences of a proposed project, the “action-forcing” nature of NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citations omitted). For this important reason, adequate environmental evaluation must occur sufficiently early in the planning process to be meaningful. North Buckhead, 903 F.2d 1533, 1540 (11th Cir.1990). NEPA does not, however, mandate particular results. The statute “prohibits uninformed — rather than unwise — agency action.” Robertson, 490 U.S. at 351, 109 S.Ct. 1835.

Congress created the Council on Environmental Quality (CEQ) to promulgate regulations applicable to all federal agencies in order to promote and implement the NEPA policy. 42 U.S.C. § 4342.

CEQ regulations direct agencies to prepare an Environmental Assessment (EA) in order to determine whether the environmental effects of a proposed action are “significant.” 40 C.F.R. §§ 1501.3, 1501.4(b), 1508.9,1508.27.

Under CEQ regulations, “significance” requires consideration of both context and intensity. Context considerations include the affected region, interests and locality, varying with the setting of the action, and include both short and long-term effects. Intensity refers to the severity of impact, including impacts that may be both beneficial and adverse; unique characteristics of the geographic area, such as proximity to wetlands, wild and scenic rivers, or ecologically critical areas; the degree to which the effects on the quality of the human environment are likely to be highly controversial; and whether the action is related to other actions with individually insignificant but cumulatively significant impacts; the degree to which the action may adversely affect an endangered or threatened species or its habitat; and whether the action threatens a violation- of Federal, State, or local law or requirements imposed for the protection of the environment. 40 C.F.R. § 1508.27.

The purpose of an Environmental Analysis (EA) is to “briefly provide sufficient evidence and analysis” to determine whether the proposed action will have a significant impact. 40 C.F.R. § 1508.27. To determine whether a federal action is “significant,” an agency must consider the direct, indirect, and cumulative impacts on the environment. 40 C.F.R. §§ 1508.8, § 1508.27(b). If the agency finds no significant impact (FONSI), then no further evaluation of the environmental effects is required. 40 C.F.R. §§ 1508.9, 1508.13. If, on the other hand, the agency finds a significant impact, the agency must prepare an Environmental Impact Statement (EIS) to detail the environmental consequences of the proposed action. 42 U.S.C. § 4332(2)(c); Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir.1998)(citing Sabine River Auth. v. United States Dep’t of Interior, 951 F.2d 669, 677 (5th Cir.1992)).

An agency’s finding of no significant impact and decision not to prepare an EIS are final administrative decisions reviewable under the APA. 5 U.S.C. § 701 et seq. The “arbitrary and capricious” standard applies to the Court’s review of the Corps’ decision not to prepare an EIS. Hill, 144 F.3d at 1450.

The Eleventh Circuit has adopted a four-part test to determine whether an agency’s decision not to prepare an EIS is arbitrary and capricious: (1) the agency must have accurately identified the relevant environmental concerns; (2) the agency must then take a “hard look” at those concerns when preparing the EA; (3) the agency must make a convincing case for a finding of no significant impact; and (4) if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum. Hill, 144 F.3d at 1450; Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.2002) (court must ensure that the agency took a “hard look” at the environmental consequences of a proposed action).

V. ANALYSIS

The crux of Plaintiffs’ complaint is that the Corps acted arbitrarily and capriciously by failing to consider the impact of the entire 1919 development when it concluded that the 535 acre portion of the project, having independent utility, would not have a significant impact on the environment, and therefore issued the permit for the County to develop that portion without preparing an EIS.

Plaintiffs raise three theories in support of this argument: (1) that the Corps unlawfully segmented the project to avoid a finding of significance; (2) that the Corps’ finding that Phase I had independent utility was arbitrary and capricious; (3) that the Corps’ environmental analysis failed to consider and take a hard look at all environmental concerns, including (a) impacts; (b) controversy; and (c) alternatives.

A. Major Federal Action and Scope of Analysis

The Corps first argues that while the issuance of the Section 404 permit in this case was a “federal” action, it is not necessarily a “major” federal action, triggering requirements of NEPA. See 40 C.F.R. § 1508.18 (“major” reinforces but does not have a meaning independent of “significantly”).

The Court finds this argument to be without merit. The Corps relies on the Eleventh Circuit’s holding that the requirements of NEPA apply only when the federal government’s involvement in the project is sufficient to constitute a “major federal action.” U.S. v. Southern Florida Water Management Dist. 28 F.3d 1563, 1572 (11th Cir.1994). In that case, however, the issue before the court was whether the state’s restoration program was “federalized” under a settlement agreement for purposes of NEPA. 28 F.3d at 1573 (“NEPA applies only when there is federal decision-making, not merely federal involvement in non-federal decision-making.”) The Eleventh Circuit further noted that “A federal agency may undertake a major federal action in the form of funding as a part of the restoration program, issuance of a permit or license to a State agency, or a change of operations over which the federal agency has authority.” In this case, the Section 404 permit constitutes major federal action, particularly in view of the fact that the proposed project could not be constructed in its absence.

The Corps further argues that it properly limited the scope of its analysis to the aspects of the project over which it had sufficient “control and responsibility” to warrant federal review. The Corps’ NEPA regulations provide that where activity requiring a permit is “merely one component of a larger project” ... the scope of the environmental review should “address the impacts of the specific activity requiring the permit and those portions of the entire project over which the district engineer has sufficient control and responsibility.” 33 C.F.R. Part 325, Appx. B § 7(b). The Corps’ determination of the appropriate scope of the environmental review process is entitled to deference. See Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851; Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

The Corps relies on Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105 (9th Cir.2000), where the Corps prepared an EA on the dredging and filling of wetlands that excluded analysis of cumulative impacts associated with development in the uplands area which was outside the Corps’ jurisdiction. 222 F.3d at 1112. The Ninth Circuit relied on its holding in Sylvester v. U.S. Army Corps of Eng’rs, 884 F.2d 394 (9th Cir.1989), which involved filling wetlands for a golf course that was part of a larger resort complex. In Sylvester, the Court had held that although the golf course and the entire resort complex “would benefit from the other’s presence” they were not sufficiently interrelated to constitute a single “federal action” for NEPA purposes (desire to place golf course in a meadow that contains wetlands did not federalize entire resort). 884 F.2d at 400. The Ninth Circuit distinguished the case the district court had relied on to reverse the agency’s finding, Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985). In Thomas, the court required the U.S. Forest Service’s EIS to encompass the effects of both the proposed road construction and the timber sales that the road construction was designed to facilitate. There, the Forest Service did not dispute the fact that it would need to assess the environmental impacts of both actions at some point and that it had jurisdiction over both actions. In addition, the Forest Service’s cost-benefit analysis was based on the value of the timber to be sold. Thomas, 753 F.2d at 758.

The facts of this case are more similar to those in Thomas that those in Sylvester. Here, the Corps has conceded that it was aware of plans for future development; that it will have jurisdiction over the next phases of development; and that it anticipates applications for those phases. Still, the Corps did not evaluate those effects. In addition, as discussed in more detail below, the Corps here considered the economic benefits of the entirety of the project in its analysis, rather than limiting that analysis to phase 1. In addition, unlike in Sylvester, the Research Park Project Plan was developed as an integrated whole along a continuum, with Scripps as its centerpiece triggering related biotechnology growth.

The Corps’ reliance on certain examples in the regulations is misplaced. The example cited is, that if a County seeks a permit to fill wetlands, the control and responsibility of the Corps extends to the portions of the project to be located on the permitted fill, and to the entire project, including portions outside waters of the U.S., only if sufficient control and responsibility over the entire project were determined to exist; that is, if the regulated activities comprised a substantial portion of the overall project. 33 C.F.R. Part 325, Appx. B, § 7(b)(3).

Rather than confirm the Corps’ restrictive view of its environmental analysis, this example would tend to support the view that the Corps’ scope of analysis should have included, at the least, the development of the remainder of Mecca Farms. Unlike the example above, the filling of wetlands on Mecca is not a discrete task, because the jurisdictional ditches, run throughout the site, every 360 feet. Indeed for this reason, the Corps did not, and could not, limit the scope of its analysis to “21.3 acres” of ditches. In addition, the Corps has acknowledged that more jurisdictional ditches occur throughout the remainder of the site, giving the Corps jurisdiction over those areas as well. The Corps has also stated that numerous wetlands are located on the Vavrus Ranch. In this sense, then, it can only be expected that the Corps will have sufficient control and responsibility over the upcoming development proposals.

The County emphasizes that the wetlands located on Mecca Farms are of “low ecological value.” This characterization, while relevant to the direct effects of dredging and filling, and to mitigation, however, does not diminish the Corps’ jurisdiction, the scope of its analysis, or its obligation to consider environmental effects under NEPA of its permit action.

B. Segmentation

The anti-segmentation rule is generally that an agency “cannot ‘evade [its] responsibilities’ under the National Environmental Policy Act by ‘artificially dividing a major federal action into smaller components, each without a “significant” impact.’ ” PEACH v. U.S. Army Corps, 87 F.3d 1242, 1247 (11th Cir.1996)(quoting Coalition on Sensible Transportation, Inc. v. Dole, 826 F.2d 60, 68 (D.C.Cir.1987)). Segmentation is intended to prevent “agencies from dividing one project into multiple individual actions ‘each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.’ ” Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 297-98 (D.C.Cir.1988)(quoting Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985)).

Plaintiffs argue that the Corps unlawfully segmented this project in two ways: first, by limiting its environmental analysis to the effects of the 535-acre project rather than the complete 1,919-acre project; and second, by authorizing the extension of PGA Boulevard within the 535-acre project boundaries without taking into account its projected connection to the Bee Line Highway across wetlands.

Relying primarily on Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Corps contends that it did not unlawfully segment the project because there were no permit applications before the Corps for any other development project or roadway improvement beyond the 535-acre project when it made its environmental assessment.

In Kleppe, the Court held that “when several proposals for ... actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action.” 427 U.S. at 410, 96 S.Ct. 2718.

Subsequent CEQ regulations codified that holding, by requiring that an EIS include consideration of connected, cumulative and similar actions. 40 C.F.R. § 1508.25. Relying on this regulation, the Corps further argues that it did not unlawfully segment the 535-acre project from the larger project because segmentation turns on whether two or more “actions” are connected. Connected actions are defined as those that “(i) Automatically trigger other actions which may require environmental impact statements; (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously; [or] (iii) Are interdependent parts of a larger action and depend on the larger action for their justification.”

Importantly, in Environmental Defense Fund v. Marsh, 651 F.2d 983, 999 (5th Cir.1981), while finding that NEPA did not require the Corps to complete an EIS on a project “still in the process of study and design” based on Kleppe, the Fifth Circuit noted that Kleppe “also leaves room for a court to prohibit segmentation or require a comprehensive EIS for two projects, even when one is not yet proposed, if an agency has egregiously or arbitrarily violated the underlying purpose of NEPA.” By way of illustration, the Fifth Circuit cited Named Individual Members of San Antonio Conservation Soc., 446 F.2d 1013 (5th Cir.1971), where it had previously held that the Secretary of Transportation exceeded his authority by segmenting a highway project to allow construction of two “end segments,” each leading to the borders of a treasured city park, while postponing the “middle segment” for “further study.” The Court found that construction of the two end segments would have effectively eliminated any alternatives to using the middle park land for the third segment.

That case is particularly instructive here, insofar as Plaintiffs’ claims regarding the segmentation of PGA Boulevard are concerned.

The parties do not dispute that the Corps’ permit authorizes the construction of a road across the southern end of the proposed project site that is ultimately planned as an extension of PGA Boulevard from Seminole Pratt Whitney Road to the Bee Line Highway. AR. 2713.

The Corps concedes that it is aware of this planned extension, but argues that it need not consider this or any other road extension because 1) they are not necessary to the proposed project; 2) the state has not approved or fully analyzed road construction or expansion; and 3) the County has not acquired the rights of way that may be needed. As early as December 2003, the Corps noted, in an internal email on “the latest info on Scripps,” that “the bigger environmental issues will be the proposed access roads — extension of Seminole Pratt Whitney Road.” A.R. 4.

Plaintiffs argue in particular that by authorizing the construction of PGA Boulevard through the site, the Corps has predetermined the ultimate alignment of the connecting PGA extension, as it will have to connect the existing portion to the newly permitted segment through wetlands, and preclude the ability to thoroughly evaluate alternative alignments. The Court agrees.

One need only review the map of the proposed site in context to see that the placement of a PGA Boulevard extension as conceived by the County and approved by the Corps will ultimately require a connection through an area on what the parties agree includes high value wetlands.

In fact, the maps initially submitted by the Corps indicated that the road would be extended, although the extension was indicated by arrows only, alignment to be determined. The maps were revised by the County only after the Corps instructed the County to indicate the roads ending in cul-de-sacs. The Corps explains that it instructed the County to do this because it had not approved any road extension beyond the project boundaries.

In any event, however, the Corps was duty bound to evaluate the plans of the County, particularly where the Corps had specifically noted that the access roads presented the “bigger” or more “troublesome” environmental issues of the planned development. Just as a project may not be unlawfully segmented to avoid significance, the concept of “independent utility” should not be manipulated to avoid significance or “troublesome” environmental issues, in order to expedite the permitting process.

Citing Sierra Club v. Callaway, 499 F.2d 982 (5th Cir.1974), the Corps argues that the fact that roadways within a system interconnect does not require them to be considered as a single project for NEPA purposes. However, in Callaway, the Fifth Circuit approved the segmentation of two related federal water projects, finding that each project was separately authorized and funded; and that one was only a minuscule component of the other, viable alone, mostly finished, and had independent utility. Here, by contrast, the permitted road and the planned extension are part and parcel of development intended by the County and conceived of as an integrated whole. Far from a “minuscule component” of the larger project, the initial phase is intended as the anchor and catalyst for the remaining development.

The Corps also relies on Daly v. Volpe, 514 F.2d 1106 (9th Cir.1975). There, in an action challenging the sufficiency of an EIS, the Court upheld the agency’s segmentation of a proposed highway where although the segment was not clearly between logical termini, it had independent utility as a by-pass for a town currently plagued by extreme congestion; and did not foreclose an adequate discussion of alternatives.

In Preserve Endangered Areas of Cobb’s History, Inc. (“PEACH”) v. U.S. Army Corps, 87 F.3d 1242, plaintiffs challenged a proposed highway construction project that would run through a historic district in Cobb County and impact approximately 3.77 acres of wetlands. After the County developed a mitigation plan, the Corps found no significant impact and issued the permit. Plaintiffs claimed that the Corps’ analysis of the proposed project alone, rather than in conjunction with other related projects in the County, was arbitrary and capricious. The Court upheld that Corps’ approach under the Federal Highway Administration guidelines, that the proposed highway project had logical termini (“all roads must begin and end somewhere”) and independent utility, and that the scope of analysis of the proposed road would not restrict consideration of alternatives for other reasonably foreseeable transportation improvements elsewhere.

Although the road permitted here can stand alone — as any road could— it cannot be said that ending an extension of PGA Boulevard in a cul-de-sac is a logical terminus, particularly when strategically placed in a property that is planned and expected to induce significant development. Further, it is clear that the full benefit of this road is realized only when it is extended to the Bee Line Highway as planned. In addition, by permitting the construction of a road along the mostly southern border of the proposed project site, the Corps risks foreclosing the wide range of options for building roads intended to service the entire development. “If proceeding with one project will, because of functional or economic dependence, foreclose options or irretrievably commit resources to future projects, the environmental consequences of the projects should be evaluated together.” Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir.1981). “A highway segment to nowhere, for example, should not be evaluated apart from later connectors that will be necessary to make the initial segment useful.” Id. It is abundantly clear from this record that the County’s planned road extensions raise a number of important environmental concerns. By permitting the first step toward road expansion now without considering those effects, the Corps has arbitrarily and capriciously determined that the proposed project will not have any significant environmental impact.

This finding of no significant impact, particularly in view of the record evidence that the Corps anticipated significant environmental consequences associated with the road expansions, is sufficiently contrary to the underlying policy of NEPA to warrant review of the planned extensions even though not formally proposed.

The Corps urges that this case presents different facts, because in Named Individual Members, the three proposed highway segments were before the agency when it elected to segment them. However, the Court in Named Individual Members not only condemned the segmentation as unauthorized agency action under the relevant statute, but also as unlawful because of the “frustrating effect such piecemeal administrative approvals would have on the vitality of [the protective statute].” 446 F.2d at 1021. The Fifth Circuit noted that “[platently, the construction of these two ‘end segments’ to the very border, if not into, the Parklands, will make destruction of further parklands inevitable, or, at least, will severely limit the number of ‘feasible and prudent’ alternatives to avoiding the Park. The Secretary’s approach to his ... responsibilities thus makes a joke of the ‘feasible and prudent alternatives’ standard, and we not only decline to give such an approach our imprimatur, we specifically declare it unlawful.”

While the instant case does not present the same egregious conduct found in Named Individual Members, the Court is troubled by the Corps’ authorization of a segment of PGA Boulevard within the proposed project, and ending in a cul-de-sac, without examining the reasonably foreseeable environmental issues the Corps itself identified.

C. Independent Utility

The Corps also argues that its analysis was properly limited to the 535-acre proposed project because that project has “independent utility.”

The Corps defines independent utility as “A test to determine what constitutes a single and complete project in the Corps regulatory program. A project is considered to have independent utility if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility. Phases of a project that would be constructed even if the other phases were not built can be considered as separate single and complete projects with independent utility.” 67 Fed.Reg.2094 (Jan. 15, 2002).

In its EA, the Corps stated that it believed that Palm Beach County had shown that the 535-acre project had independent utility from (1) the remaining future development on the 1,919 acre Mecca Farms site; (2) the development on Vavrus Ranch; (3) and the construction of future roads. A.R. 2684. The Corps explained that it reached this conclusion:

because the biotechnology research park could be constructed alone, without need for the remaining development, and is not dependent on that other development for its success. In addition, no new roads would be constructed outside of the 535-acre site as a result of the biotechnology research park... Moreover, the development of Vavrus Ranch and the remainder of Mecca Farms are likely even if the SCRIPPS Biotechnology Park is not built.

A.R. 2684.

Plaintiffs argue that the “independent utility” determination was arbitrary and capricious, and that it is betrayed by the record, which they contend shows that the 535-project, the remaining Mecca development, and development of Vavrus Ranch are “inextricably related.” Plaintiffs emphasize that the County’s vision has always been that of a unified campus, with Scripps as its anchor, and that the County selected the Mecca site for its size. Plaintiffs also argue that it is insufficient for the Corps to rely exclusively on the County’s representations of independent utility to make this determination.

The assessment of independent utility “reveals whether the project is indeed a separate project, justifying the consideration of the environmental effects of that project alone.” 87 F.3d at 1247 (citing Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 440 (5th Cir.1981)). The Court must defer to the Corps’ interpretation of its own regulations. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, that deference is afforded so long as there is a reasonable basis in the record for the Corps’ determinations.

In PEACH, the Corps “required Cobb County to show that the project had independent utility,” which the County did relying on more than fifty exhibits. 87 F.3d at 1248. The Corps based its conclusion on a review of the Minutes of the Board of Commissioners for Cobb County, maps showing the county’s transportation plans, and transportation studies conducted by the county. 87 F.3d at 1247.

The record in this case, however, is starkingly different from the facts presented in PEACH. The inescapable conclusion from this record is that the Research Park Project was conceptualized as an integrated whole, progressing in phases, and that the 535-aere project was never intended to stand alone — not, that is, until time came to apply for a CWA permit. The record also reflects a sense of urgency, and that the Corps early on committed to try to expedite the process, even though in the end more than eight months passed between the formal application and the permit’s issuance.

The administrative record in this case actually begins in November 2003, about six months before the Corps contends the County’s Permit Application was filed. In December 2003, Corps attends a “Scripps Expedited Preliminary Permitting Project — Preliminary Agency Briefing,” which includes a discussion about the Comprehensive Plan Amendment and the DRI. The agenda includes a “Preliminary Time Frame Discussion,” but no mention or allusion to a stand alone project. A.R. 7. On December 18, 2003, in an internal email a Corps’ member writes, “[The County is] going through the expedited permit process with the State and the Corps has agreed to try and work with them in an expeditious manner as well.” A.R. 10.

In February 2004, the County files a “Project Description Form for Expedited Permitting Review for the proposed Palm Beach County Biotechnology Research Park to be located on approximately 1,920 acres in northwestern Palm Beach County” with the Office of Tourism, Trade and Economic Development, and sent a copy to the Corps. A.R. 12-183.

The County documents state that “the extension of Seminole Pratt Whitney Road will occur along the western side of the site.” A.R. 165-166. In addition, the County “anticipates that construction of Seminole Pratt Whitney Road from North-lake Boulevard north to its planned intersection with PGA Boulevard will begin January 2005,” the same time the County is to deliver the first 100 acres to Scripps to build the initial facility. A.R. 18. “Construction of PGA Boulevard from Seminole Pratt Whitney Road East to Scripps will begin September 2005.” A.R. 18. The County notes that the PGA extension off-site would not be required until after the initial phase. A.R.1908.

In March 2004, the Corps acknowledges receiving the County’s Application.

On March 14, 2004, an internal Corps email again states that the Corps had committed to completing the “evaluation as fast as possible.” Specifically, the Corps member writes that the Corps had “indicated that we need to look at the whole project, because of uncertainty about roads to the site. The first phase site is an orange grove (Mecca Farms) with very little Corps regulated areas. However, the road access they are discussing would have substantial impact on high-quality wetlands.” A.R. 224.

On March 16, 2004, the County provides a description of the project, writing “Proposed is a research park development on approximately 1,920 acres in the northwestern region of Palm Beach County.” A.R. 228.

On March 18, 2004, the County provides the Corps with a description of the “Palm Beach County Biotechnology Research Park” as a “multiple use development planned for approximately 1,920 acres of property in the northwestern portion of Palm Beach County.” A.R. 234. The description adds that adjoining Vavrus Ranch “is being considered for development with similar and complementary uses to what is proposed for the Research Park. Efforts to jointly plan for both developments are underway[.]” A.R. 234. The document further states that “a preliminary program has been developed for the approximately 1,920-acre property Palm Beach County Biotechnology Research Park[.]” A.R. 232. The Scripps Research Institute (TSRI) is described as the “centerpiece” of the project. A.R. 232. The County describes its intent as the master developer as follows:

[T]o develop a project that is sustainable and economically viable by creating a master plan that clusters the uses to promote intellectual exchange between the researchers and scientists at TSRI and other related companies, provides for a range of workforce housing to help minimize traffic impacts on surrounding roadways and provide obtainable housing for administrative and support staff, provides convenient retail, restaurant and other shopping opportunities for the workforce and residents, and promotes an integrated development that incorporates transportation alternatives to the automobile by incorporating a connected pathway, bikeway and multi-use rail system throughout the project.

A.R. 232. In addition, the document states that “[t]he presence of TSRI in Palm Beach County, along with the influence of high-tech markets, will encourage other industries to locate their facilities at this site ... These facilities will consist of approximately 8.5 million gross square feet of building space [.]” A.R. 231.

An internal Corps email “Re: Scripps” states that the Corps is working “on the associated road infrastructure.” A.R. 238. The Corps member writes that a state expedited review is underway “because of the economic benefits to the state” and that the Corps has “indicated that we will do our best to keep pace with the state’s review.” A.R. 238.

In April 2004, an internal Corps email attaches a “fact sheet” its regulatory project manager prepared. That fact sheet states:

This project proposes to develop a 1,919-acre site ... by constructing a biotechnological and biomedical research and pharmaceutical business park known as the SCRIPPS park. Within the 1,919 acre site, the project also proposes to construct single-family residential areas, multi-family residential areas, commercial areas, recreation areas, a high school, a university, surface water management lakes, a greenbelt area and associated roads... The Corps has said we will evaluate the application as quickly as we can recognizing the importance of the project to the local economy.

The Corps notes that “initially identified roads would connect to existing roads through high value wetlands” and that the Corps had “identified that concern to the State and County.” A.R. 242. Later that month, the Corps and the U.S. Fish and Wildlife Service (FWS) exchange emails related to both the Vavrus and Mecca “projects.” A.R. 256. In response to a FWS request for more information, the Corps writes:

These are definitely the types of issues that will have to be resolved as we collectively look at cumulative and secondary impacts associated with these two projects... As far as FDOT is concerned, they have been working on revisions to their planning process and budget to incorporate the roads in the vicinity of Scripps in their schedule... Roads such as PGA and Northlake will become bigger issues as time goes on. I’m really not sure what the County is doing with their roads (i.e.Pratt-Whitney).

A.R. 256. The FWS asks whether FDOT has “specialists to address wildlife corridor issues” and whether “the appropriate expertise [will] be available [to the County and State project planners] to adequately address the habitat fragmentation associated with Vavrus and Mecca.” A.R. 260.

Then, on April 27, 2004, the “independent utility” concept appears in the record for the first time. In an internal Corps email regarding how to respond to press inquiries, one Corps member states that he explained to a reporter that the Corps had not yet received the application from the County, but that the Corps “would be conducting a thorough review for the overall project, particularly as it relates to associated roads and other infrastructure that may ultimately be constructed as a result of Scripps. We also told him of the potential for the review of the Scripps facility itself ... under the concept of ‘independ