Full opinion text
ORDER ON MOTIONS FOR SUMMARY JUDGMENT HOEVELER, Senior District Judge. THIS CAUSE comes before the Court on the parties’ various motions for summary judgment. This Court heard argument on October 22, 2004, and additional argument was heard on September 30, 2005. The following briefly summarizes the most salient facts of this case, all of which will be addressed in greater detail below. In 1991 the limestone mining industry approached federal, state, and local government regulators with a sixty-year plan for mining in wetlands in southeastern Florida, in an area described by the industry as the “ “Lake Belt,” near Everglades National Park (“ENP”) and related water conservation areas in western Miami-Dade County. The mining plan included significant new areas of mining as well as continued mining in areas previously permitted, and required the destruction of tens of thousands of acres of wetlands located above the Biscayne Aquifer (the County’s sole source of drinking water) in order to reach the limestone rock below. The following year, the Florida Legislature established a Lake Belt committee to develop a plan that would “enhance the water supply for Dade County and the Everglades” as well as “maximize efficient recovery of limestone while promoting the social and economic welfare of the community and protecting the environment.” Fla. Stat. § 373.4149. Later that same year, in anticipation of new permit applications and requests to extend previously issued permits, the United States Army Corps of Engineers (“Corps”) announced its intention to prepare an Environmental Impact Statement (“EIS”) for limestone mining which could impact approximately 54,000 acres of wetlands by the year 2050 in northwest Dade County.” AR65. Over the next several years a number of issues were raised for discussion and analysis by interagency groups and other committees, e.g., risks to protected species, extent of need for locally-produced limestone products, potential contamination of the Aquifer, and threats of additional inverse condemnation lawsuits (one of the mining companies, Florida Rock, had successfully sued the United States in the mid-1980s on a claim that the denial of permits for mining in this area was an unconstitutional taking of property, recovering $21 million for 1,560 acres). Analysis of these issues revealed that while the Lake Belt area contains large quantities of limestone, the mining would directly destroy wetlands, potentially contaminating millions of gallons of drinking water drawn daily from the Aquifer, and that the large deep pits which remain after mining would negatively affect groundwater seepage rates in and out of surrounding water areas, e.g., ENP; also, the remnant mining pits might compromise the larger program of Everglades restoration. The Corps issued a final EIS in June 2000, AR614, which addressed the issuance of mining permits of fifty years each, for a total of 14,300 acres to be mined in the Lake Belt, including new and existing areas. The permit period later was reduced by the Corps to ten years, as an apparent compromise between the mining industry’s urgent demands that new permits (approx. 8,400 acres) be issued concurrently with extensions of soon-to-expire existing permits (approx. 5,900 acres), and the objections to the mining plan that were being raised by federal and state agencies, local government, private organizations, and individuals. The Corps issued a Record of Decision (“ROD”) in April 2002, AR1028, collectively approving the new limestone mining permit applications and extending the term of the previously-issued permits, for a total of approximately 5,400 acres of mining to take place in ten years.- The new permits had an initial three year review period, after which the permits could be modified, if necessary. Plaintiffs allege that the Corps erred in issuing the ROD and awarding the permits to members of the limestone mining industry to conduct mining activities for ten years on 5,400 acres without, inter alia, updating the EIS that had been issued two years earlier. Further, they allege that the United States Fish and Wildlife Service (“FWS”) failed in its duty to protect the wood stork, and other species whose habitats may be affected by the mining, by determining that the Corps’ actions were “not likely to adversely af-feet” those species — without FWS conducting its own full assessment of the situation. Plaintiffs have alleged violations of the Administrative Procedures Act (“APA”), 5 U.S.C. § 706; the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.; the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.; and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The Corps and FWS (“Federal Defendants”) argue that the permitting process was handled correctly, over a multiple year period, with the involvement and subsequent concurrence of all major federal, state, and local agencies, and that deference ultimately must be shown to the federal agencies. They offer as evidence of their deliberative process that they ultimately reduced the originally requested permit period from fifty years to ten years, required that the permitted activities be evaluated after the first three years, and also imposed additional conditions in response to concerns raised by objectors. The members of the limestone mining industry (“Industry Defendants”), who were permitted to intervene in this action because of their economic interests in the subject of this litigation, argue that the permits were issued legally, with sufficient analysis of environmental impacts, and that a failure to permit this mining would result in an improper restriction on private property interests. PROCEDURAL BACKGROUND Plaintiffs initially filed their Complaint on August 20, 2002, in the United States District Court for the District of Columbia. The Federal Defendants filed an Answer and moved to transfer the action to this district, and members of the limestone mining industry filed a request to intervene as defendants. On August 4, 2003, the Federal Defendants’ motion to transfer was granted, and on December 30, 2003, this case was assigned to this Court. The Court granted the pending motion to intervene, and also granted Plaintiffs’ request to amend their complaint to include claims based upon new information submitted to the Corps after the permits had issued (in light of all defendants’ representations that they had no objection to such amendment). The Amended Complaint, filed April 6, 2004, seeks declaratory and injunctive relief and specifically alleges the following violations by the Corps: 1) insufficient analysis in the EIS (Count V, NEPA and APA); 2) failure to prepare a supplemental EIS prior to issuance of the ROD (Count V, NEPA and APA); 3) issuance of the permits without sufficient analysis or opportunity for public participation (Count I, CWA and APA), and without completing the formal consultation process required by the ESA or otherwise protecting listed species (Count III, ESA); and 4) deficiencies in the agency’s response to Plaintiffs’ complaints after issuance of the permits— Plaintiffs had urged the agency to prepare a SEIS at that time (Count VI, NEPA and APA), and to stop the permitted activity pending a reevaluation of the agency’s decision (Count II, CWA and APA). Plaintiffs also claim that FWS’ concurrence in the Corps’ decision that no formal consultation was required and FWS’ failure to re-initiate consultation violated the ESA and APA (Count IV). Summary judgment motions were briefed by all parties, and a full day hearing was held on October 22, 2004. The Federal Defendants subsequently notified the Court, on May 2, 2005, that the anticipated completion of the initial review process, specified in the permits to be conducted three years after the permits were issued, would be delayed. An additional hearing was held on September 30, 2005, at which time the Court posed several questions to counsel regarding the status of the pending initial review and issues related to the announced delay. Shortly after that hearing, Plaintiffs filed a request to dismiss, without prejudice, Counts II and VI of their Amended Complaint. As there have been no objections filed as to the question of dismissing these Counts, the Court will grant that request, noting that the claims may be renewed at an appropriate time. THE STANDARD OF REVIEW Clarifying the Claims and Record to Be Reviewed The Federal Defendants argue that there is no cognizable claim under the ESA against FWS for failing to engage in formal consultation (Count IV) — but rather that such claims are to be reviewed under the APA — a point which Plaintiffs concede. The Federal Defendants also argue that this Court lacks subject matter jurisdiction due to an alleged procedural defect regarding Plaintiffs’ claim that the Corps failed to complete the formal ESA consultation process (Count III). The Court has examined the question of whether the Corps had sufficient notice of Plaintiffs’ intent to sue, and has determined that since Plaintiffs’ March 30, 2001, letter, AR793B, specifically incorporated their September 25, 2000, notice of intent to sue, and because it is clear from the record that the Corps had information from Plaintiffs as to their claims, that it thus would not be error for this Court to address the substance of the allegations now presented by Plaintiffs. As noted above, the Court has dismissed Counts II and VI. Therefore, in summary, the claims appropriate for review are those in Count I (Corps’ issuance of the permits/ROD in compliance with CWA and APA), Count III (Corps’ compliance with ESA), Count IV (FWS’ compliance with APA), and Count V (Corps’ preparation of EIS, and failure to issue SEIS pre-ROD, in compliance with NEPA and APA). Generally, judicial review of an agency action is limited to review of the record available to the agency at the time of the final action which forms the basis of the complaint. There are only a limited number of situations which permit a reviewing court to review extra-record materials— one of which is when an EIS is challenged, because such a challenge raises questions as to the sufficiency of the analysis contained therein. Although the focus of judicial inquiry in the ordinary suit challenging nonadjudi-catory, nonrulemaking agency action is whether, given the information available to the decision-maker at the time, his decision was arbitrary or capricious, and for this purpose ‘the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court,’ in NEPA cases, by contrast, a primary function of the court is to insure that the information available to the decision-maker includes an adequate discussion of environmental effects and alternatives, which can sometimes be determined only by looking outside the administrative record to see what the agency may have ignored. Suffolk County v. Secretary of Interior, 562 F.2d 1368, 1384 (2d Cir.1977) (district court did not err in accepting extra-record evidence and testimony, but clearly erred in concluding that such evidence and the record revealed NEPA violations in preparation of EIS for proposed leasing of offshore oil and gas resources) (citations omitted, italics in original), quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The parties have submitted the Administrative Record of the Corps (“AR”), including its supplement, on a total of seventeen compact disks, with an index alone that is more than 100 pages in length. The record consists of thousands of pages of reports, correspondence, maps, studies, tables, handwritten notes, and electronic mail messages, spanning the time period of 1980 — 2004. In addition, the Administrative Record of the FWS (“FAR”) consists of eight large binders, and includes additional materials on computer disk. The decision documents themselves total more than 1,000 pages, e.g., the EIS is 992 pages, including appendices. Subsequent to the amendment of the complaint, the Federal Defendants submitted a certified Supplement to Administrative Record (“SAR”), containing an additional approximately 150 documents dated as recently as April 27, 2004, and beginning as early as July 24, 2000. The parties have attempted to introduce materials that simply did not exist prior to the date of the ROD. For example, Plaintiffs offered the report of Dr. Stavros Pa-padopulos as to potential contamination of the Aquifer by mining activities, and his report was referenced in Plaintiffs’ correspondence to the Corps dated February-16, 2004. SAR1317. According to Plaintiffs, Dr. Papadopulos conducted a tracer dye study in April 2003 which suggests that Cryptosporidium and giardia, microorganisms which negatively affect drinking water safety, can travel faster/survive longer in water than previously thought. See Am. Compl., Attachment 1. This information clearly is material to a comprehensive analysis of environmental impacts from mining; however, because this report was completed after the date of the ROD, the Court only cursorily reviewed the information contained therein to determine whether the substance of the report suggested that the EIS failed to analyze adequately the contamination risks. The recent submissions by the industry Defendants present a source of material that not only was not in existence prior to the ROD, but also was not any part of the administrative record (not even the supplemental record). For example, excerpts from the Lake Belt 2004 Annual Report, dated January 2005, are offered to demonstrate that the mining industry recently has been conducting water quality monitoring studies. See Docket Entry # 59, Exhibit A, Attachment l. The Court appreciates the efforts by the parties to amplify the record evidence, but despite this intriguing information accumulated by the parties after the issuance of the ROD, the Court has made its determination on the issues based upon the record — unless otherwise expressly noted — with each alleged agency action reviewed in light of the appropriate agency’s record through the date of that specific action. The Relevant Statutes, Rules, and Regulations The standard for granting summary judgment is so often applied that it is rarely examined; a brief study is instructive here, particularly in light of the constraints on judicial review of agency actions such as those challenged herein. The burden on the moving party is a high one: the weight of all the evidence, considered in a light most favorable to the non-moving party, must demonstrate the lack of a genuine, triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Under this strict standard, summary judgment is appropriate only if the record evidence shows that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. When the Court is reviewing an administrative agency’s decision, the summary judgment standard must be applied consistently with the mandate that great deference be given to agency actions. Plaintiffs have alleged violations of the APA and several environmental laws: NEPA, CWA, and ESA. The APA permits a court to set aside an agency’s actions, findings or conclusions only where they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), or “without observance of procedure required by law,” 5 U.S.C. § 706(2)(D). Courts have adopted the APA standard of review, specifically the “arbitrary or capricious” test, as to each of the environmental statutes at issue herein. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (rejecting “reasonableness” standard of review in favor of APA’s “arbitrary or capricious” standard as to NEPA claims); Preserve Endangered Areas of Cobb’s History, Inc., v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1249 (11th Cir.1996) (applying “arbitrary or capricious” standard to CWA claim); Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir.1996) (narrow “arbitrary or capricious” standard applicable to ESA claims). “The court shall not substitute its judgment for that of the agency.” Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1246 (11th Cir.1996), 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 principal purpose of the deferential review is “to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements about which courts lack both expertise and information to resolve.” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (court can only compel agency to act when the agency had an enforceable duty to do so). This deferential standard of review does not in any way suggest a “rubber-stamping” role for the judiciary; rather, the Court must “immerse” itself in the evidence in order to determine whether the agency decision was rational and based on consideration of the appropriate factors. See, e.g., Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1 (D.C.Cir. 1976) (en banc) (EPA had rational basis for promulgating regulations to reduce lead content of gasoline because lead emissions presented significant risk of harm). The close scrutiny of the evidence is intended to educate the court. It must understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices open to the agency and those made. The more technical the case, the more intensive must be the court’s effort to understand the evidence .... The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagency that can supplant the agency’s expert decision maker. To the contrary, the court must give due deference to the agency’s ability to rely on its own developed expertise. Id. at 36. Importantly, deference to an agency’s decision is not required if the agency has failed to follow its own regulations. “The failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct.” Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir. 1986) (citation omitted) (agency did not follow its own regulations in accepting cash bid that was lower than credit bid offered pursuant to sale of surplus property); see also, Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999) (agency decision not entitled to deference since decision violated National Forest Management Act and its implementing regulations by not gathering species data prior to approving timber sale). The narrow scope of this Court’s review does not place blinders on the Court nor does it reign in the Court’s authority once it has determined that an agency has violated its own regulations. Indeed, the deferential judicial review of an agency’s actions should oblige that agency to disclose fully the reasoning behind its decisions in order to demonstrate clearly that such decisions were issued in compliance with governing laws — such candor would ensure that our nation’s environmental laws are respected. ANALYSIS 1. INTRODUCTION Although the permits at issue are described as being for 5,400 acres of mining over a ten year period, according to Plaintiffs, the Corps’ permitting decision was simply “the first phase of a much larger plan to transform more than 15,000 acres of Everglades wetlands to mining pits over the next several decades.” Am. Compl, at 2. Plaintiffs argue that the Corps’ reliance on reports prepared by or paid for by the permit applicants, i.e., the mining companies, improperly influenced the environmental analysis required by NEPA, the CWA, and the ESA — particularly as to the consideration of whether there were other available and environmentally preferable sources of limestone. Plaintiffs claim that the Corps violated NEPA by failing to fully consider the “no mining” or “curtail future mining” alternatives to approving the mining plan, and that the permits should not have issued because the permit applicants failed to demonstrate, as required by the CWA, that there were no practicable alternatives to permitting mining in the Lake Belt. According to Plaintiffs, the Corps’ EIS failed to analyze all direct, indirect and cumulative impacts resulting from the mining — particularly as to groundwater seepage, contamination of drinking water pumped from the Aquifer through wellheads in the Lake Belt, the destruction of endangered wood stork habitat, and increased urbanization — and that the ROD failed to provide an adequate discussion of what mitigation would be required for the inevitable adverse effects of the mining, e.g. the conversion of thousands of acres of wetlands into mined-out deep quarry pits. Plaintiffs also attack the ROD, which included the Corps’ conclusion that the permit action would “not have a significant impact on the quality of the human environment,” for failing to adequately explain why mining was being approved despite the strong objections that had been raised by several governmental agencies and others. Plaintiffs argue that the Corps’ failure to hold a public hearing or to encourage public participation in the permitting process violated the CWA and NEPA; for example, Plaintiffs note that the public never received notice of the permits’ ten “special conditions” until the permits were issued, even though those “special conditions” revealed compromises as to the transfer of mined property to the public and other issues that had been the subject of substantial criticism. In addition, Plaintiffs claim that the Corps and FWS erred by deciding not to enter into formal consultation under the ESA regarding the potential impact on the wood stork population, and by failing to re-initiate consultation after the receipt of additional information on the wood stork’s habitat, as well as by not taking required steps to protect other species. The Federal Defendants assert that the long agency review process was handled correctly and that Plaintiffs have not provided evidence that demonstrates that the reports provided by the mining industry were biased or that contradicts the industry’s reports. Mining has been ongoing in the Lake Belt area for decades, according to the Federal Defendants, and the Corps was required to consider the “economic hardship on the mining industry” and the “legal issues” that would arise if the permits were not issued. Reply Brief, Docket Entry # 42, at 4. According to the Federal Defendants, the EIS provided a comprehensive environmental analysis, and the ROD provided a sufficiently detailed mitigation plan; they also argue that the subsequent decision to reduce the amount of acres and the length of time for mining under the permits satisfactorily addressed the concerns that had been raised by objectors. The Federal Defendants also claim that the evidence regarding the wood stork population in the area does not establish that its habitat will be negatively affected, nor were any other species going to be harmed by the mining. As the Corps had received extensive written comments throughout the deliberative process, the Federal Defendants claim that a public hearing was not necessary; they also argue that a number of public workshops and meetings were taking place regarding the Lake Belt, and that they did not have to do anything further to encourage public participation. At the hearing in September 2005, the Court heard argument from the parties as to whether it would be prudent to stay consideration of the undeniably ripe issues until completion of the initial, i.e., three-year, review of the permits. No consensus emerged, and the Court determined that it would be improper to delay decision on these issues — particularly if such delay were to be perceived as an attempt by the Court to provoke a particular agency action. This Court’s responsibility is simply to determine whether the Federal Defendants fulfilled their duties and not to determine whether a remand is “practical” in light of subsequent developments. The. Court has studied this case very carefully, and is disturbed by the fact that so many strong objections to the issuance of these permits had been raised by other governmental agencies, as well as by individuals, and that the administrative record reveals an urgency and pre-determination about the decision-making process that may have resulted in a less than full consideration of important issues. Most importantly, such a rushed approach to the agencies’ specifically charged duties is contrary to the dictates of the federal environmental laws, both procedurally and substantively, and leaves this Court with the inescapable conclusion that the decision-making process suffered from substantial deficiencies which resulted in agency decisions that were not in accordance with these laws. At both the first and the supplemental hearing on the summary judgment motions, the Court heard extensive argument from learned counsel for all parties. Also, in addition to reviewing the decision documents and the parties’ briefs thoroughly, the administrative records of both the Corps’ and the Fish and Wildlife Service have been studied in great detail. The Court’s review has disclosed several areas of critical concern in the manner in which the agencies proceeded with respect to these permits. These areas are outlined below, and then addressed in more detail later in this opinion. First, there is an underlying theme of pre-determination evident in the frequent reference by the Corps’ staff to the historical presence of mining in the area, the Corps’ swift rejection of suggestions that mining be stopped or limited, and the omnipresence of mining representatives and their reminders that the Florida legislature’s creation of a Lake Belt Committee indicated the state’s support for mining; additionally, the record reveals that Corps staff were fully aware that one of the permit applicants, Florida Rock, already had filed a successful regulatory takings challenge against the Corps in the early 1980s which resulted in a significant settlement in 2001, after the EIS was published. (The ROD describes the case and settlement. AR1028 at 37.) To the extent that this sense of inevitability permeated the agencies’ decision-making processes, there is a high likelihood that procedural safeguards, such as those enshrined in NEPA and the CWA, were overlooked or viewed as unimportant in light of the expected approval of the mining. The Court also is concerned about the perception, suggested by comments of Corps staff, that the Corps was “negotiating” with the miners, rather than serving as the regulatory agency charged with enforcement of this country’s environmental laws. The Court is mindful of the challenges faced by the agencies, many of whose employees clearly labored long hours to attempt to protect our natural resources while meeting the demands of this well-organized industry, but the Court cannot ignore the obvious: the Corps did not exercise the full range of its authority, but rather allowed negotiations with miners to result in procedural shortcuts and other abuses of the discretion that has been entrusted to the agency. Second, the urgency of the Corps’ actions, which is detectable at different points in the record, may have resulted in decisions that were arbitrary or capricious. For example, this urgency may have compromised the ability of objectors, including agency staff and members of the public, to fully voice their concerns — thus restraining the mandatory agency coordination and public participation that are vital elements of the federal environmental laws. The most clear evidence of the timing pressures faced by the Corps is disclosed in the EIS, which reported that if the Corps did not issue permits for mining before September 30, 2000, “then the mitigation fee [$.05 per ton of rock mined in the Lake Belt] will be suspended until readopted by the Florida Legislature.” AR614 at 100. The Corps’ earlier attempts to reach agreement with the miners on a higher mitigation fee (of $.08 per ton, AR560) had been unsuccessful, so the effect of this state legislation may have been to push the Corps to grant the mining permits, and to do so promptly, rather than risk the ability to collect substantial funds from the mining industry to pay for the required mitigation. This area of concern was expressed in communications between the agencies assembling the mining and mitigation plans and may have caused the FWS and EPA to decide not to pursue their objections further, even though their areas of concern apparently remained unresolved, e.g. potential groundwater contamination, adequacy of mitigation plan, etc. It is unclear whether each of the agencies’ objections actually had been addressed fully, or whether there was a concerted effort to reach agreement in order to keep the process moving toward granting the permits with a mitigation fee in place, or whether — as Plaintiffs suggest— the objections were not pursued further because of fear of reprisals within and between agencies. Finally, the Corps’ failure to take the time to hold a public hearing and its lack of meaningful engagement with the general public, i.e., not just the permit applicants or select environmental advocacy groups, stand as further evidence of the regrettable effects of rushing through such important environmental decisions. The examples above highlight the circumstances that lead to the ultimate and unfortunate result: certain of the agencies’ decisions lacked a rational basis and were not supported by the record before the agency at the time. Third, the rush to finalize the permitting decision also may have compromised the analysis and scientific review that is vital to this type of endeavor, particularly as to the determination of an environmental baseline against which to measure impacts regarding groundwater seepage, and also as to the study of potential contamination of the Aquifer. One interagency group’s report makes several references to the compressed time schedule in which it was required to perform its analysis as to alternative scenarios for the mining, noting that very little empirical data was able to be accessed and analyzed. The Corps’ rush to issue the EIS (in order to be able to meet the September 30, 2000, permit deadline imposed by the Florida Legislature) may explain the notable absence of updated relevant scientific analyses. For example, of the 38 scientific references cited in the EIS, nearly half (sixteen) were at least twenty years old by the time that the EIS was issued, and only one had been published within the past five years. AR614 at 106. Also, the Federal Defendants admit that they did not engage in formal consultation according to the ESA as to any species, despite the confirmed presence of the endangered wood stork in the Lake Belt. Most importantly, Miami-Dade County, through its Department of Environmental Resources Management (DERM), raised strong objections to the mining and began the process of reviewing its wellfield protections (which prohibit mining within a certain distance from the wellheads in the Lake Belt area), and updating its wellfield protection ordinance, Chapter 24-12.1, Code of Miami-Dade County, to ensure that the setbacks were sufficient to accommodate the increased risks presented by the additional mining, AR1028 at 54, but the permits were issued before the County completed its study, and without the Corps conducting its own study. The County’s request for a public hearing, submitted in July 2000, AR654, was not even responded to until it was denied by the Corps in April 2002, AR1023. This failure by the Corps to adequately consider relevant factors mandates a remand to the agency for further deliberations. Perhaps most significantly, the record does not reveal sufficient support for the Corps’ decision that there were no practicable alternatives to mining, nor have the briefs submitted by the parties satisfied the Court’s concern on this point. The regulations implementing the CWA, found at 40 C.F.R. 230.10, prohibit the issuance of a dredge and fill (into wetlands) permit if, inter alia, practicable alternatives exist. An alternative is “practicable” if it is “available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall project purposes.” 40 C.F.R. 230.10(a)(2). There is a rebuttable presumption that practicable and environmentally preferable alternatives exist if the activity being proposed “does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not ‘water dependent’).” 40 C.F.R. 230.10(a)(3). In this case the Corps admittedly failed to make the presumption that a practicable and environmentally preferable alternative existed. The Corps disregarded this regulatorily mandated presumption because it determined that the proposed mining was water-dependent since the applicants had requested to mine in these specific wetlands; but this circuitous reasoning is improper. If the Corps had made the proper presumption, the miners would have been required to overcome the presumption by proving convincingly either that there were no practicable alternatives or that other alternatives, e.g., mining in other locations in South Florida, northern Florida, Alabama, etc., would have a more adverse impact on the environment. The Court has reviewed in detail the 1999 report of Paul Larsen, which was submitted on behalf of the mining industry, and upon which the Corps based its entire analysis of practicable alternatives. After reviewing that report, the Court does not find record evidence to overcome the presumption that should have been applied by the Corps. That is, my reading of the 1999 report and the Corps’ discussion thereof, is that there appear to be practicable alternatives to mining in the Lake Belt; thus, if the Corps had not failed to apply the presumption that is mandated in the CWA regulations, such alternatives would have been investigated more rigorously and, perhaps, determined to be practicable and environmentally preferable. While the Corps refers to its duties under the environmental laws throughout the decision documents, it also has stated that it must “weigh the rights the property owners have to use their property, the public need for material to construct houses, roads, schools, and other infrastructure, and potential ecological and economic impacts of [relocating mining to other locations].” AR637. Shifting the focus to the situation it inherited, and apparently attempting to argue that prior land use approvals for mining in or near the Lake Belt area left the Corps with little choice but to approve continued mining, the Corps notes that “[d]ecisions by the State of Florida, by Miami-Dade County and by other agencies contributed to the original decision by the landowners to locate their mining in this area.” Id. The record, taken as a whole, reveals that the weight given by the Corps to the above concerns was such that it overwhelmed the significant environmental factors, regarding the adverse impact of the mining in the Lake Belt, that should have been given greater weight. To summarize, my specific concerns regarding the Corps’ determination that the mining required siting in these wetlands, and the agency’s consequent failure to presume that a practicable (and environmentally preferable) alternative existed, compel my conclusion that this case must be remanded to the agency for further analysis. The other issues identified above, e.g., the failure to conduct formal consultation under the ESA, the lack of disclosure of important information to the public, the rush to grant the permits before the County completed its wellfield protection studies, etc., offer additional support for the Court’s conclusion, as will be explained in more detail below. The Court has provided this rather lengthy introduction to assist the parties, and now turns to an expanded analysis of the points summarized above. II. THE FACTS Southeastern Florida’s miles of densely populated oceanfront are matched in significance by thousands of acres of wetlands lying several miles to the west of the coastal urban areas. The wetlands are part of the Everglades ecosystem, stretching south from Lake Okeechobee to the Florida Keys, which has received international attention not only because of its ecological uniqueness, but also because of an unprecedented multi-billion dollar restoration program initiated in the past several years. Restoration of the ecosystem is required because of the harmful effects resulting from decades of development in the area, spurred in part by the Corps’ own Central and Southern Florida (C & SF) Project, which provided, among other benefits, flood control for the coastal areas, thus allowing for their extensive urban development. The C & SF Project Comprehensive Review Study (“Restudy”), authorized by Congress in the 1992 Water Resources Development Act (WRDA) with specific guidance provided in Section 528 of the 1996 WRDA, AR1152, examined the entire ecosystem and lead to the creation of the Comprehensive Everglades Restoration Program (CERP). The CERP study area, encompassing 18,000 square miles, includes 66,400 acres of marshes, reservoirs and recharge areas in Palm Beach, Broward, and Dade Counties, described as the East Coast Buffer, along with Water Conservation Areas (WCAs) to the west, i.e., constructed marshes designed to hold surface water for multiple purposes, including flood control, groundwater recharge, and fish and wildlife enhancement. The CERP is designed to provide an environmental buffer to the Everglades, seepage reduction for the water conservation areas, water supply benefits through groundwater recharge, and the enhancement of thousands of acres of wetlands that once comprised the Everglades. AR618 at 226. Presumably this program will lead to greater health for the multiple species which utilize these wetlands, including the endangered wood stork and threatened American alligator, both of which have been observed in the Lake Belt area. AR614 at 40-50, 672, 688-96. It should be noted that the CERP is only a study or policy document and does not itself authorize any projects, but rather recommends projects. Federal Defendants’ Reply brief, Docket Entry # 42, at 9. All of these restoration efforts are particularly important to the health of the Biscayne Aquifer, an underground freshwater reservoir lying beneath most of Miami-Dade County and the primary source of drinking water for South Florida. AR1028 at 4. In October 1979 EPA officially designated the Biscayne Aquifer to be ‘the sole or principal source of drinking water for all municipal water systems [in southeast Florida].’ AR1176. The Aquifer, made of limestone-bearing materials such as shells, coral, and sand, begins beneath the wetland soils and extends to a depth of approximately 100 feet. AR614 at 27, AR1028 at 5. Miami-Dade County has taken steps to study and protect the quality of this important freshwater source, and operates several public wells in an area known as the Northwest Well-field, which is described as “the largest drinking water wellfield in the State.” AR617 at 5. The fifteen wells located in the Northwest Wellfield collectively draw water up from the Aquifer to supply 40% of the County’s drinking water. AR617 at 5, AR1028 at 5. One of the County’s most important concerns is that the Aquifer not be subject to reclassification as “groundwater under direct influence” of surface water — as such a reclassification (from the present classification as “groundwater”) would require a costly modification of the County’s regional water treatment facilities. AR1175. Such modifications would be required in order to control the spread of disease-causing bacteria and other pathogens. The “Lake Belt” area includes 57,515 acres, or 90 square miles, AR1028 at 4, of “ecologically pristine, degraded, and developed areas” of wetlands, AR614 at 382, which form the northwestern edge of Miami-Dade County and border the eastern edge of Everglades National Park (ENP) and Water Conservation Area 3B (WCA3B) See map, Appendix A to this opinion, AR614 at 16. The entire Lake Belt area is within the “Lower East Coast” region of the Restudy, see AR1152; CERP plans for the area include conversion of two quarry pits into reservoirs ringed with subterranean seepage barriers to protect the underlying Aquifer. The Northwest Wellfield is located in the Lake Belt (toward its eastern border). Mining in the Lake Belt area has been ongoing since the 1950s and, as a result, approximately 5,000 acres of quarry pits already existed at the time the ROD was issued in 2002, i.e., approximately 10% of the Lake Belt area already was a quarry pit. AR1028 at 58. Indeed, rock mining and agricultural use already had altered approximately 30% (i.e., approx. 17,254.5 acres) of the Lake Belt, primarily affecting the wetlands lying to the east of the Dade-Broward Levee, as well as those wetlands south of Tamiami Trail, i.e., closest to the border of Everglades National Park. In the remaining unaltered 70% of the area, the invasive and destructive melaleuca plant is expanding rapidly in a westerly direction, AR1028 at 4, due — at least in part — to the actions of the mining industry itself over the past decades. Melaleuca, which has been declared a Federal Noxious Weed and a Florida Prohibited Aquatic Plant, negatively affects wetland functions and “threaten[s] the core of the Everglades ecosystem.” AR614 at 39-40, 382-83, 419. Rock mining (and construction of required roads and large work pad areas) is one of the “[a]biotic factors that have influenced the current distribution of the cover types [including melaleuca] in the Lakebelt Region,” AR614 at 38-39, 383. This unnatural activity has shortened hydroperiods and disrupted surface water sheet flows, resulting in “the alteration of the historical long hydroperiod wetlands to shorter hy-droperiod prairies, causing shifts in vegetative species composition and species richness.” Id. “Since its introduction into South Florida in 1906, Melaleuca has become established in areas that were historically wetlands, especially those stressed by reduced hydroperiods.” AR614 at 39. Mining not only has caused a greater infestation of the exotic melaleuca, but also “has created extensive areas of deep water habitat, which do not naturally occur in southern Florida.” AR614 at 39, 383. The mining industry claims that these lakes will be of recreational benefit and, moreover, that the lakes actually prevent the further spread of melaleuca — but the recreational benefits will be limited and the claim of melaleuca control is disputed. In addition, the lakes are of questionable environmental value; for example, the presence of the lakes increases the seepage of precious groundwater from other Everglades wetlands. The deep lakes are particularly problematic when located in proximity to the L-31N Levee/Canal which lies near.the border of ENP, to the south of Tamiami Trail. The L-31N “cuts through an area of extremely high groundwater flow, most of which originates from [the Park].... The key to improving water conditions in ..., especially for the Everglades, is controlling the seepage quantities now leaving the Park in a way that both minimizes the total amount of flow and returns as much of this flow as possible to the Park.... The quarries ... do result in an increase in groundwater flow to the east [i.e., away from the Park].” AR614 at 230, 241, and Appendix A. For example, studies suggest that mining the entire Krome Quarry tract (Kendall Properties, closest to the ENP boundary), when compared to mining only the previously permitted lakes, may cause as much as an 11% increase (i.e., an additional 3 cubic feet per second per foot (cfs)) in seepage from the Park during the dry season, AR614 at 244; the Pennsuco also may be affected, with an average reduction of 35 days in the length of its hydroperiod as compared to the situation of mining only the permitted lakes in the area, AR614 at 244. It is beyond question that limestone is a valuable product of the environment, and the record suggests that a good quality and quantity of limestone exists under the Lake Belt wetlands and other areas of Miami-Dade County. The limestone rock resource found in the Lake Belt Area is of high quality. The resource is an important public resource needed for the continued growth and prosperity of the State of Florida. This was recognized by the State Legislature .... Rock in the Lake Belt is one of the few deposits in the State that meets Department of Transportation requirement [sic] for hardness and chemical content. Rock from the Lake Belt supplies much of Dade County and 40 percent of the State’s rock, sand and cement for concrete, asphalt and road base [see EIS, Appendix I], As other mining areas in the State are depleted, the Lake Belt Area is expected to supply a greater percent of the State’s rock in the future. AR1028 at 82. The mining industry also has attempted to establish that Lake Belt limestone is of particular importance to the entire State. “That Florida has extremely limited resources of construction grade rock is demonstrated by the fact that this expensive-to-transport material was used to build Cape Kennedy and Disneyworld [sic], both more than 150 miles north of Dade County.” AR209 at 1-2. In addition to the existing quarry pits, agricultural uses, and melaleuea-infested areas, the Lake Belt also includes an area of relatively undisturbed wetlands, i.e., wet prairies of high functional value, described as the Pennsuco wetlands and comprising approximately 13,000 acres located west of the Dade-Broward Levee and north of Tamiami Trail. AR618 at 226, AR1028 at 4. Mining companies own a total of 46% of the Lake Belt, governments own 19%, and the other 35% is owned by private landowners. Some of the mining companies own land in the Pennsuco, and the ROD reports that such property (approximately 9% of the miners’ total land in the Lake Belt) will be sold for wetland restoration. AR1028 at 58. Approximately 331.5 acres (of non-Pennsuco wetlands) are planned to be mined in each of the first ten years — including some mining that was authorized under the previous permits. AR1028 at 116. (That totals only 3,315 acres of mining, but the ROD permits describe 5,409 acres of mining.) To frame the issues in this case, it is important to have a basic understanding of the mining activities that are occurring as a result of these contested permits. “Rockmining is a heavy construction operation. It involves blasting, heavy equipment operations such as draglines and dozers, walking and driving over harsh terrain, involvement with rock crushing heavy equipment with long conveyor belts, driving heavily loaded trucks and other hazardous type activities.” AR1028 at 82. “Heavy trucks transporting the rock to railroad loading sites add to the heavy traffic congestion,” AR1028 at 82, and “approximately 2,000 trucks serve the local market in Dade and Broward counties .... ” AR19 at 9. “[M]ining ... involves unavoidable noise and certain amounts of dust.” AR19 at 5. The soil removed prior to blasting “is predominantly organic muck typical of [drained] Everglades marsh .... [which] overlies limestone bedrock.” AR1028 at 56. “The rock is excavated down to a depth of 80 feet [and after] excavation, mnck is placed back on the 100-foot-wide limestone shelf ____Upon completion of the mining activities, there is a total conversion of the physical substrate from a wetland to á deep lake with a 100-foot littoral shelf along its perimeter.” AR1028 at 56. The “deep lakes” or quarry pits, which are between 60 — 80 feet deep, fill with water seeping in from the Biscayne Aquifer -with which the pits interact directly — and are added to by rainfall. The mining companies sell the limestone rock and several related products, and at least two of the companies manufacture cement from the rock. The miners claim to need a 50 year plan to provide the certainty that they need to continue in business, AR610 at p. 8, because of the “enormous capítol [sic] expenditure required by this industry.” AR19 at 9. They also assert that they expect permits to continue to be issued for mining. The nature of the industry demands that considerable capital investments be made in heavy equipment and processing plants. These investments often have depreciation schedules greater than the length of a typical Permit. The industry recognizes that Corps permits have expiration dates, and, barring a change in the Clean Water Act, there is an expectation of continued permitting. This is not to say the permits cannot be allowed to expire or revoked, but that the basis for the permit termination should be based on new information on environmental or other impacts that indicate mining would be contrary to the public interest or be illegal under other laws. AR1028 at 36. While mining occurred freely in the 1950s and 1960s, the regulatory environment changed significantly in the late 1970s. The United States, acting through the Corps, began requiring permits under the CWA for mining activities being conducted in wetlands. The County also, in 1975, produced its first Comprehensive Master Plan, which, according to the mining industry, “recognized and approved the ongoing mining industry in the Lake Belt Area.” AR610 at 22. According to the County’s land use report prepared for inclusion in the EIS, rock mining is an allowable use in “general use” or “agricultural” zoning categories, AR614 at 59, which exist throughout most of the Lake Belt — with the notable exception of the Pennsuco wetlands, which are designated for “Environmental Protection” (although the area also includes some general use and agricultural zoning). AR614 at 62, 805 — 823, Appendix E, Lake Belt Land Use Report. The exercise of regulatory jurisdiction by the Corps over the actions of one limestone mining company (Florida Rock, an intervening defendant in the present action), resulted in the commencement of litigation in 1982 challenging the denial of mining permits as an uncompensated regulatory taking. That litigation, as previously noted, appears to have played an important role in the relationship that developed between the mining industry and the Corps — as evidenced in the permitting process presently before this Court. Because of its importance, and also because it represents a somewhat unusual interpretation of federal takings jurisprudence, the Court will address the Florida Rock case here in some detail. At the commencement of the inverse condemnation action in the early 1980s, Florida rock conceded the legitimacy of the Corps’ permitting decision, i.e., the denial of a permit for three years of mining on 98 acres of wetlands. In May 1985, the Court of Claims held that denial of the mining permit constituted a taking, thereby rejecting the Government’s suggestion that other uses for the property remained, and awarded $1,029,000 (i.e., $10,500 for each of the 98 acres, that had been purchased originally by Florida Rock for $l,900/acre). Florida Rock Industries, Inc. v. U.S., 8 Cl.Ct. 160 (1985) (then Chief Judge Kozinski). The Federal Circuit reversed that decision. Although not disagreeing that a taking had occurred, the court noted that the Claims Court’s written findings — -which conflicted with that court’s earlier oral announcement — that there was no threat of pollution to the wetlands related to the temporary turbidity caused by the mining, presented a potential conflict with the Corps’ right to exercise permitting authority and such conflict may have improperly influenced the takings determination. The court also noted that speculative future uses could be considered in the valuation of the property and that the fair market value, not the “use value formula,” should be applied. Florida Rock Industries, Inc. v. U.S., 791 F.2d 893 (Fed.Cir.1986). The Claims Court again, in July 1990, found a taking and reinstated the prior finding that the property was valued at $10,500 per acre. The court rejected the Government’s evidence of comparable sales and, instead, relied on Florida Rock’s demonstration that their property had suffered a 95% reduction in value because purchasers who were knowledgeable about the wetland restrictions would not pay full price for the property. Florida Rock Industries, Inc. v. U.S., 21 Cl.Ct. 161 (1990). The Federal Circuit, in 1994, again reversed the decision and the valuation method — criticizing the value placed on the property, and remanding for an analysis as to whether a taking actually had occurred, i.e., whether all economically beneficial use of the land had been denied. Florida Rock Industries, Inc. v. U.S., 18 F.3d 1560, 1562, 1564-67 (Fed.Cir.1994). For a third time, the Claims Court, in 1999, found that there had been a taking, noting that Florida Rock bought land and started mining before the CWA dredge and fill permit system was created, that mining was the only economically viable use of the property, that the property suffered a 73.1% decrease in value because of the permit denial, and that Florida Rock couldn’t recoup its investment by selling the property. Florida Rock Industries, Inc. v. U.S., 45 Fed.Cl. 21 (1999). Shortly thereafter, the claims court also ruled that repeated applications for permits to mine the remaining 1,462 acres (of Florida Rock’s total 1,560 acres) would be futile, such that Florida Rock should receive compensation for these acres as well. The court certified its ruling for immediate appeal to the Federal Circuit. Florida Rock Industries, Inc. v. U.S., 243 F.3d 555 (2000). While the Government’s appeal of that decision was pending before the Federal Circuit, the parties reached a settlement which dismissed the Claims Court judgment and the appeal. Law of Wetlands Regulation, pp. 10-15. The settlement for $21 million bears little relation to the early pronouncement by Chief Judge Kozinski that compensation for the entire 1,560 acres parcel would be $10,580,000, plus interest. Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 895, 897 (Fed.Cir.1986). Although there has been significant public opposition to this mining for the past several years, as demonstrated by the substantial number of objections lodged in the administrative record, the Florida Rock litigation was a powerful reminder of the financially costly consequences of the Corps’ permitting decisions. In 1991, after its second victory before the Claims Court, the mining industry approached officials from the State of Florida, Dade County, and the Corps “with the idea of coordinating permitting” to “maximize limestone recovery” by connecting adjacent quarries (instead of having to stop inside of property lines). AR19, AR1028 at 35. The industry also proposed to “utilize the resulting contiguous lake[s] for- public recreation” and to “restore a large contiguous area of the Everglades known as the Pennsueo.” AR1028 at 35. As part of their “South Florida Limestone Mining Coalition Year 2050 Fresh Water Lake Belt Plan,” the miners would mine 300 to 400 acres per year for approximately 60 years, for a total of 20,000 mined acres by the year 2050. AR22. Apparently in response to the miners’ pitch, the Florida Legislature created a committee of agency and industry representatives to study and review future mining activities. The Dade County Freshwater Lake Plan Implementation Committee (“Committee”) was established, according to Fla. Stat. § 373.4149, to “develop a plan which: enhances the water supply for Dade County and the Everglades, maximizes efficient recovery of limestone while promoting the social and economic welfare of the community and protecting the environment; and educates various groups and the general public of the benefits of the plan.” The Committee was chaired by the regional water management district, the South Florida Water Management District (“SFWMD”), and did not include any federal agencies as voting members. The Corps, EPA, and FWS all shared “ex-officio” status with selected Florida legislators. AR395, AR1028 at 35. Originally there were thirteen voting members on the Committee, four of whom were from the rock mining industry, and three of whom represented environmental organizations (including Plaintiff Sierra Club); two more members were added in 1994, AR395 at 15, 18. At some point before June 2000, two additional non-mining landowners were added to the Committee. In June 1992, the mining industry, acting as the South Florida Limestone Mining Coalition (Coalition) presented its “Year 2050 Fresh Water Lake Belt Plan” to the Committee. Environmental, land use, and water quality concerns were raised swiftly by DERM to the Lake Belt Committee, the SFWMD, and the Corps. AR44-46. Immediately recognizing that the issuance of mining permits in these wetlands would constitute a “major federal action,” the Corps formally advised the SFWMD in July 1992 that an EIS was required, AR38, and in the fall of 1992 the Corps issued a “Fact Sheet” announcing that an EIS would be developed concerning a proposed area of 54,000 acres, including 19,600 acres of proposed lakes, 4,000 acres of existing lakes, 17,000 acres of constructed wetlands, and 13,000 acres of wetland preservation and maintenance areas. The Corps previously had prepared an EIS on mining in this area in 1983, concluding that permit applications would be reviewed on a “case-by-case basis,” as it was “essential that mitigation requirements be flexible to reflect the needs of the people, the socioeconomic values and industrial demands, and future technical data .....” AR3. When the Corps conducted the EIS for the present mining, it abandoned its original approach. Interagency discussions were held to prepare a scope of work for the new EIS and to identify partners for support of the endeavor. A meeting was held at DERM in October 1992 to discuss the necessary biological studies, and in November 1992 the FWS advised the Corps that, while the Service would cooperate on EIS preparation, it did not have funds for doing vegetative and wildlife and mitigation analyses. AR83. Also, the U.S. Geological Service declined to participate formally as a cooperating agency but offered to assist by providing any of its existing information. In December 1992, technical staff from SFWMD met with the Coalition and other agencies to discuss alternative designs for the environmental studies. The Lake Belt Committee issued reports to the state legislature and initiated several studies designed to understand the function and quality of the wetlands within the' Lake Belt Area, including two-year studies initiated in 1994 on the functional value of the vegetation, wildlife, and existing lakes within the Lake Belt Study Area. Phase I of the Lake Belt Committee’s Report and Plan were submitted to the Florida Legislature in February 1997 (“Making a Whole, Not Just Holes”). AR433. In January 1997, an Issue Advisory Team was created by the South Florida Ecosystem Restoration Task Force Working Group to draw a map and analyze alternative mining scenarios. The Team included subcommittees to study mitigation and wellfield protection, and an agency sub-subcommittee that would debate the application of a functional assessment of the