Full opinion text
FINAL ORDER CORRIGAN, District Judge. On June 30, 2004, defendant United States Army Corps of Engineers (“Corps”) issued SAJ-86, a regional general permit (“RGP”), which contemplates the dredge and fill of wetlands to accommodate development in a 48,150 acre region in Northwest Florida. Plaintiffs Sierra Club and Natural Resources Defense Council filed suit against the Corps and two Corps officials in April and May of 2005 seeking to enjoin the Corps from authorizing the dredge and fill of any wetlands pursuant to SAJ-86, claiming that the Corps’ issuance of this permit was in violation of both the Clean Water Act of 1977, 33 U.S.C. §§ 1251, et seq. (“CWA”), and the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. (“NEPA”), and various attendant regulations. During the course of these proceedings, the parties debated whether this regional general permit represents good environmental policy and whether the Corps should use its permitting authority to authorize activity of the scope and scale contemplated here. However, the Court does not join this debate as the Court’s sole task is to determine whether the Corps’ issuance of this permit is in compliance with the law. Having now considered this case on a full record, I find, by the slimmest of margins, that the Corps’ issuance of regional general permit SAJ-86 does not violate the statutory and regulatory requirements of either the CWA or NEPA. I will therefore be vacating the previously issued preliminary injunction (Doc. 72) and entering judgment for the Corps in both consolidated cases. I. Background The region covered by SAJ-86 is a 48,-150 acre parcel along U.S. Highway 98 in Florida’s panhandle. Intervenor St. Joe Company, Inc. owns more than 75 % of the land covered by the permit and much of St. Joe’s business there has focused on silviculture (pine tree production), an industry that has dominated the region since the 1920s. In response to expanding population growth in the area, St. Joe has modified its business plan to include commercial and residential development. Because the region’s landscape is permeated with wetlands, which account for approximately 60% of the land area, most of these developments require a CWA permit so that wetlands can be dredged or filled to accommodate the development. Under the CWA statutory scheme, the Corps is the agency that issues CWA permits for the dredge and fill of navigable waters, which can include wetlands. 33 U.S.C. § 1344. Rapanos v. United States, — U.S. -, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). The Corps may issue either an individual or a general permit for this purpose. An individual permit is issued to allow the dredge and fill of wetlands for a single specific project that is subject to public review and input and whose details and plans meet numerous Corps guidelines and standards. 33 U.S.C. § 1344(a). A general permit, on the other hand, is issued on a national, regional, or statewide basis and allows the dredge and fill of wetlands for an entire category of activities, provided that the activities are similar in nature and will cause only minimal adverse environmental effects, both separately and cumulatively. 33 U.S.C. § 1344(e). Like an individual permit, issuance of a general permit is subject to Corps standards and guidelines and public input and review. However, usually once a general permit has issued, a landowner seeking to conduct activities in conformity with a general permit’s terms need only secure an “authorization” from the Corps before beginning dredge and fill activities. This authorization process is far less onerous than the original permitting process. In 2000, after noting an increase in individual permit applications from St. Joe for development projects in northwest Florida, the Corps initiated discussions with St. Joe and other federal and state agencies regarding the possibility of arriving at a regional development plan through use of a general permit that would guide growth in a manner which maximized protection of wetlands on a larger scale than would be possible on an individual project-by-project basis. Over the next few years, the Corps, St. Joe, and several state and federal agencies cooperatively developed a plan for wetlands management in the area, the result of which was the Corps’ June 30, 2004 issuance of regional general permit SAJ-86. By all accounts, SAJ-86 is unique and unprecedented in that it covers an extraordinarily large land area (over 75 square miles) in comparison to other regional general permits and because a single landowner (St.Joe) owns an overwhelming proportion of the land covered by the permit (over 80%) and has specific rights and obligations under the permit terms that do not apply to the other landowners who own property within the RGP area. Tr. 30-39. See too, AR 3636 (comment by Corps’ project manager for SAJ-86 (Gordon Hambrick) that permit “would be largest in Florida for the types of activities [] described”; stating he was “not aware of any similar RGPs having been developed in any of the other Corps Districts in the nation”). Under SAJ-86, landowners can dredge or fill wetlands to construct residential, commercial, recreational and institutional projects in the regional general permit area. However, the amount of wetlands dredged or filled as a result of these construction activities are limited in the following ways: first, impacts to “high quality” wetlands throughout the permit area are limited to 125 total acres; second, impacts to “low quality” wetlands are limited to 20% of the wetlands in any one of nineteen different geographic sub-basins; third, all lost wetlands are to be mitigated either through on-site mitigation or through two off-site mitigation banks; and fourth, the permit designates up to 13,200 acres of land as “conservation units,” which land St. Joe (the owner of the 13,200 acres) is to ultimately place into conservation by granting easements to the Florida Department of Environmental Protection (“DEP”) for the perpetual protection of those acres. AR 3802, AR 3880-82. The permit contains numerous other terms that do not directly affect the am0unt of wetlands to be dredged or filled but that otherwise affect the impact of construction activities on wetlands and the environment generally, such as wetland buffer requirements, restrictions on the type of wetland fill that can be used, septic tank and drainfield prohibitions, required methods of storm-water management for new construction projects, and limits to the placement of road crossings. The permit also contemplates the execution between St. Joe and the DEP of a 30 page Ecosystem Management Agreement (“EMA”), the conditions of which are specifically incorporated into SAJ-86 as special conditions applicable to St. Joe. Special Condition 1, AR 3876. Among these conditions is that the EMA (and by extension, the RGP) will serve as the exclusive mechanism for St. Joe to initiate the types of activities authorized by the permit within the 31,369 acres (the total acreage St. Joe owns in the RGP area) covered by the EMA. Under SAJ-86, developers, including St. Joe, and others seeking to build residential, commercial, recreational and institutional projects that impact wetlands within the permit area apply to the Corps’ District Engineer who may authorize individual projects upon finding them to be compliant with the terms of SAJ-86. Review of proposed projects for authorization includes review of the proposed mitigation plans for wetlands that will be dredged or filled by the project. Authorization for a project may also be conditioned upon the satisfaction of additional terms set forth by the District Engineer to minimize adverse environmental impacts. Special Condition 21, AR 3886. Notwithstanding the existence of SAJ-86, an owner of land within the permit boundaries is not required to seek authorization under the permit for projects impacting wetlands, even where the proposed projects would be covered by SAJ-86. Rather, a landowner may still, at its own option, apply for an individual permit to dredge and fill within the regional general permit area or could seek authorization under a different general permit, such as Nationwide Permit (“NWP”) 39, that applies to the type of project otherwise authorized by SAJ-86., These options, however, would not apply to St. Joe, which is obligated by the terms of the EMA to use the EMA and RGP exclusively for construction activities covered by the permit. In April and May of 2005, the plaintiffs filed suit against the Corps and two Corps officials. The complaints allege that the Corps violated the CWA because SAJ-86 is beyond the scope of the CWA’s general permitting scheme; the Corps failed to comply with the CWA statutory requirements and related regulatory requirements that a general permit issue only for categories of activities that are similar in nature; the Corps failed to comply with the CWA statutory requirement and its implementing regulatory requirements that a general permit issue for categories of activities that will cause only minimal adverse environmental effects (most particularly because the Corps relied on mitigation in reaching this finding); the Corps failed to follow the Environmental Protection Agency (“EPA”)’s 404(b)(1) Guidelines in implementing the CWA as it applies to SAJ-86; and the Corps failed to engage in an appropriate analysis of the public interest review factors as required by its regulations. Plaintiffs also claim that the Corps’ issuance of SAJ-86 violates NEPA because the Corps failed to take the required “hard look” at the environmental impacts of the activities authorized by the permit when it did not fully engage in the required alternatives analysis, and failed to consider the direct, indirect, and cumulative effects of the permit activities on the human environment, all of which resulted in the Corps making an unsupported “Finding of No Significant Impact” under NEPA. Many of these issues raise additional sub-issues as further described below. In their complaints, the plaintiffs ask the Court to declare void and invalid the permit itself as well as any project authorizations previously issued pursuant to the permit; and, alternatively, to enjoin the Corps from issuing further project authorizations until it has complied with the statutory and regulatory requirements of the CWA and NEPA. In August 2005, plaintiffs filed motions for preliminary injunction seeking to enjoin the Corps from issuing any new authorizations pursuant to SAJ-86 and to stop further construction of those projects already authorized under the permit. Following further briefing and a hearing, the Court granted preliminary injunctive relief, finding that the plaintiffs had preliminarily demonstrated a substantial likelihood of showing that the Corps’ issuance of SAJ-86 violated the CWA’s requirement that general permits issue only for categories of activities that are similar in nature and that will have minimal adverse environmental effects. See Order, Doc. 72. The Court did not address any of the plaintiffs’ other arguments and in its decision, the Court reminded the parties that its preliminary ruling was subject to revision or reversal in a final order. Id. at 3. The parties filed supplemental briefs and on February 16, 2006, the Court held an all-day final hearing, the record of which is incorporated by reference (Doc. 129). The parties then filed another round of briefs. Bespeaking the difficulty and complexity of the issues presented, the Court, after having taken the matter under active advisement, issued an Order requiring the parties to respond to additional questions, which they have now done. This matter is now ripe for a final decision on the merits. II. Standard of Review The Corps’ decision to issue SAJ-86 and its compliance with the CWA and NEPA is subject to review under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Under this standard, the Court must set aside action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Wilderness Watch and Pub. Employees for Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1088 (11th Cir.2004). An agency action is arbitrary and capricious within the meaning of the APA where the “agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court accords “particular deference” to an agency’s informed decision “where issues of science, technical expertise or complex environmental statutes are involved.” Florida Keys Citizens Coal., Inc. v. U.S. Army Corps of Eng’rs, 374 F.Supp.2d 1116, 1127 (S.D.Fla.2005) (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Envtl. Coalition of Broward County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir.1987)). This standard gives a reviewing court “very limited discretion to reverse an agency’s decision.” City of Oxford, Ga. v. F.A.A., 428 F.3d 1346, 1352 (11th Cir.2005). Nonetheless, judicial review must be “searching and careful,” ensuring that the agency decision “was based on a consideration of the relevant factors” and that there have been no “clear errorfs] of judgment.” Sierra Club v. Johnson, 436 F.3d 1269, 1273-74 (11th Cir.2006) (quoting Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996)). This inquiry “requires the court to consider not only the final documents prepared by the agency, but also the entire administrative record.” Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir.2002) (quotation and citation omitted). In reviewing agency action under the APA, “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. See Sierra Club v. Slater, 120 F.3d 623, 637 (6th Cir.1997) (finding Ohio EPA decision due to be affirmed under the APA where plaintiffs “nitpicking” argument regarding technical failure to comply with regulations resulted in no prejudice). However, the prejudicial error doctrine is to be used only in the “clear” absence of prejudice. U.S. Steel Corp. v. U.S. E.P.A., 595 F.2d 207, 215 (5th Cir.1979) (rejecting application of prejudicial error doctrine where EPA’s failure to publish pre-promulgation notice affected plaintiff). Additionally, in addressing whether an agency has acted in accordance with law in interpreting a statute it is charged with administering, the Court must use the two-step analysis described in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the Court determines “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. “Then, if Congress’ intent is clear from the statutory language, [the Court] must give effect to it.” Johnson, 436 F.3d at 1274 (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). Congressional intent is examined through traditional tools of statutory construction. Wilderness Watch, 375 F.3d at 1091-93; Chevron, 467 U.S. at 843, n. 9, 104 S.Ct. 2778. Second, “ ‘[i]f the statute is silent or ambiguous with respect to the specific issue,’ ” the court then defers to the agency interpretation if “the agency based its interpretation on a permissible construction of the statute.” Johnson, 436 F.3d at 1274 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). The Court “ ‘need not conclude that the agency construction was the only one it permissibly could have adopted’ or even that [the Court] would have interpreted the statute the same way that the agency did.” Id. (quoting Chevron, 467 U.S. at 843, n. 11, 104 S.Ct. 2778). However, Chevron deference is to be accorded “ ‘when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’ ” Gonzales v. Oregon, 546 U.S. 243, -, 126 S.Ct. 904, 915, 163 L.Ed.2d 748 (2006) (quoting United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). “Otherwise, the interpretation is ‘entitled to respect’ only to the extent it has the ‘power to persuade.’ ” Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). The persuasive value to be accorded an agency’s interpretive decision depends on its “thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight.” Mead, 533 U.S. at 235, 121 S.Ct. 2164. Finally, where an agency has promulgated regulations and procedures for implementing a statutory scheme, the agency must “scrupulously follow” those regulations and procedures. Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir.1999). An agency decision issued without adherence to its own regulations must be overturned as arbitrary and capricious. Id. If interpretation of an agency’s regulation is at issue, the Court must defer to the agency’s interpretation “unless plainly erroneous,” “inconsistent with the regulation,” or if the agency has “promulgated ‘a parroting regulation’ that does nothing more than ‘paraphrase the statutory language’ that it should be implementing.” Johnson, 436 F.3d at 1274 (quoting Gonzales v. Oregon, 546 U.S. 243, -, 126 S.Ct. 904, 916, 163 L.Ed.2d 748 (2006)). III. Discussion A. SAJ-86’s Compliance with the Clean Water Act The Clean Water Act of 1977 was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To that end, the CWA requires a party to secure a permit from the Corps before discharging dredged or fill material into navigable waters. 33 U.S.C. § 1344. As noted above, the Corps regulates the discharge of dredge or fill material into navigable waters of the United States by issuing one of two types of permits — either an individual permit (sometimes also referred to as a “standard” permit) or a general permit. Individual permits may be issued “following a case-by-case evaluation of a specific project involving the proposed discharge(s).” 33 C.F.R. § 323.2(g). An individual permit applicant provides the Corps with, inter alia, “a complete description of the proposed activity including necessary drawings, sketches, or plans” and “the location, purpose and need for the proposed activity” and includes descriptions of “[a]ll activities which the applicant plans to undertake which are reasonably related to the same project.” 33 C.F.R. § 325.1(d). Following receipt of an application for an individual permit, the Corps issues a public notice to solicit comments and other information from the interested public regarding the activities proposed to be authorized under the permit. 33 C.F.R. §§ 325.2(a)(2), 325.3(a). The Corps will then consider public comments (33 C.F.R. § 325.2(a)(3)); conduct a public hearing if deemed necessary (33 C.F.R. § 325.2(a)(5)); undertake the required NEPA review (which includes taking a “hard look” at the environmental impacts of the activities authorized by the permit by engaging in an analysis of alternatives to issuing the proposed permit, and considering the direct, indirect, and cumulative effects of the permit activities on the human environment, resulting in nearly all cases in either an EIS (Environmental Impact Statement) or an EA (Environmental Assessment)) (33 C.F.R. § 325.2(a)(4)); and analyze the effects of the activities proposed on the public interest, which shall include an assessment of the impacts based on guidelines promulgated by the EPA and the Corps pursuant to the CWA (the 404(b)(1) guidelines) which guidelines involve, inter alia, consideration of the long and short term effects of proposed discharges on a number of different criteria related to the aquatic ecosystem and environment such as the secondary effects and individual and cumulative effects on water current patterns, circulation, fluctuation, salinity, suspended particulate/turbidity, and contaminants. See 33 U.S.C. § 1344(b); 33 C.F.R. § 325.2(a)(6), 40 C.F.R. Part 230. Upon completing this evaluation, the Corps then reaches a decision to either deny or issue the individual permit, documenting its findings in a written memorandum (33 C.F.R. 325.2(a)(6)). If the Corps determines to issue an individual permit, the approved application is then forwarded to the applicant for signature and acceptance of all conditions upon which the permit issued, at which point the applicant can then engage in dredge and fill activities consistent with the permit. In addition to individual permits, which issue for specific individual projects, the Corps may also issue general permits “on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary [of the Army, acting through the Chief of Engineers] determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). Unlike individual permits,' the issuance of general permits do not occur at the instigation of any particular applicant. Rather, upon provisionally determining that certain anticipated dredge and fill activities would meet the criteria for issuance of a general permit, the Corps itself, acting through its division or district engineers, can propose a new general permit. And, again unlike the individual permit process, because no particular applicant is the sponsor of a general permit and no particular projects are proposed in advance, the general permit development process does not require the advance submission of specific plans, descriptions, locations, purposes or needs of anticipated projects. Once proposed, however, the process for issuance of a general permit is the same as that for the issuance of an individual permit: the Corps issues a public notice, solicits public comments, conducts a public hearing when necessary, undertakes the required NEPA review generally resulting in an EA or an EIS, and analyzes the effects of the proposed activities on the public interest factors, which includes an assessment of the impacts based on the 404(b)(1) guidelines, all of which is incorporated into a written memorandum. After the Corps issues a general permit, an applicant seeking to discharge dredge or fill materials into wetlands or other navigable waters can often immediately begin those activities without notice to or authorization by the Corps. A general permit’s terms, however, may require an applicant to notify the Corps of proposed dredge and fill activities or to secure Corps approval for such activities, which approval may be subject to the applicant’s satisfaction of additional conditions set by the Corps. See e.g., 33 C.F.R. § 325.4(a); 33 C.F.R. § 325.5(c)(1); 33 C.F.R. § 330.2(c). Here, the Corps proposed SAJ-86, a regional general permit (“RGP”), upon provisionally determining that the proposed activities satisfied the statutory requirements for issuance of a general permit (33 U.S.C. § 1344(e)) because residential, commercial, recreational and institutional development in southeastern Walton County and southwestern Bay County were a “category of activities [that were] similar in nature” in that they were components which typically comprise suburban development; and that these activities would “cause only minimal adverse environmental effects when performed separately, and [would] have only minimal cumulative adverse effect on the environment” because the proposed permit’s special conditions limited the amount of wetlands acreage that could be dredged or filled and provided. for mitigation of lost wetlands acreage. The Corps issued a public notice regarding SAJ-86 on August 29, 2003 (sent to Sierra Club and others), solicited public comments (including from Sierra Club), and held public hearings on September 24, 2003 and January 12, 2004. AR 3807-08. The Corps prepared a written document (a Memorandum for Record, AR 3801-3873) describing its consideration of alternatives as part of its NEPA review (AR 3815-3817), its analysis of the 404(b)(1) guidelines criteria (AR 3817-3839) and the public interest factors (AR 3839-3870), resulting in an environmental assessment that the proposed permit would result in no significant impact (the “FONSI” finding) under NEPA (AR 3870) and would not be contrary to the public interest (AR 3871). The Corps then issued SAJ-86 on June 30, 2004. Under the terms of SAJ-86, a prospective applicant seeking to engage in dredge and fill activities must first appear at a pre-application meeting at which the applicant, the Corps, and other federal and state agencies will review the proposed project to evaluate its scope and location; identification and delineation of wetlands, wetlands maps, proposed wetland impacts; stormwater management systems; state historic preservation; and flatwoods salamander, bald eagle, and telephus spurge documentation. Special Condition 20(a), AR 3885-86. Following the pre-application meeting, a landowner can then submit an application, which includes a final form of exhibits and information considered at the pre-application meeting. If a proposed project fails to meet the terms of the RGP, it could be submitted for consideration as an individually permitted project, to be evaluated in accordance with the individual permit application process outlined above. If, on the other hand, the Corps determines that a proposed project does meet the RGP terms, the Corps will then issue a letter of authorization. Such letters can be conditioned upon the satisfaction of additional special conditions deemed necessary to minimize adverse environmental impacts. AR 3886. Upon receipt of an authorization letter, a landowner can then undertake dredge and fill activities in the RGP area. Prior to the issuance of the Court’s preliminary injunction, the Corps had issued at least five such authorization letters to landowners to allow dredging and filling of wetlands in the RGP area. Plaintiffs claim the Corps failed to comply with the CWA when it issued SAJ-86 because (1) the scope of SAJ-86 is beyond that contemplated by the CWA’s general permitting scheme; (2) the permit fails to describe a category of activities that are “similar in nature”; (3) the permit activities will cause more than “minimal” adverse effects to the environment, both individually and cumulatively; (4) the Corps failed to adequately address the required criteria of the 404(b)(1) guidelines; and (5) the Corps failed to adequately consider the public interest review factors of 33 C.F.R. § 320.4(a). (1) Is SAJ-86 beyond the scope of CWA’s general permitting scheme? Plaintiffs argue generally that SAJ-86 “obliterates” the CWA’s distinction between general and individual permits in that SAJ-86 contemplates projects of a type and size that are typically permitted individually and that, by authorizing such projects under the auspices of a general permit, SAJ-86 projects avoid the level of scrutiny with which projects are reviewed under the individual permitting scheme, thus undermining the policy reasons for having the two categories of permits in the first place. In support, plaintiffs cite to two features of other general permits they argue are missing from the RGP here. First, plaintiffs claim the category of activities of most general permits is so narrowly defined that the impacts of such projects are virtually guaranteed to be minimal. Plaintiffs cite to nationwide permits such as those for utility lines (NWP 12), navigation aids (NWP 1) and small boat ramps (NWP 36) as examples of the types of projects usually authorized by a general permit. Second, plaintiffs note that most nationwide permits provide relatively small and very specific (1/4 — 1/2 acre) limits to the amount of wetlands that can be destroyed by authorized projects, thus further guaranteeing that authorized projects will have minimal impact to wetlands. By contrast, the projects to be authorized by SAJ-86 range from hospitals to business parks to golf courses, and the limits to the actual amount of wetlands to be impacted by those and other projects varies from sub-basin to sub-basin, limited only by the 125 total acre limit to high quality wetlands and the 20% limit per sub-basin to low quality wetlands. In these respects, plaintiffs contend that the RGP is serving as a “catch-all” for nearly any and all dredge and fill activity to be conducted in this vast geographic area, resulting in projects of a type and size otherwise only authorized by individual permits but which now escape the level of review to which individually permitted projects are subjected. Instead, say plaintiffs, the only review SAJ-86 projects ever receive comes from the Corps during the post-permit authorization process, which process excludes any opportunity for public input and, most importantly, never requires a landowner to attempt to minimize impacts to low quality wetlands at all, provided that proposed projects do not exceed the 20% low quality wetlands impact threshold. Thus, unlike the individual permit process, which requires a landowner to show that there are no alternatives to the project which would result in lesser or no impact to wetlands, plaintiffs argue that St. Joe, as well as any of the other landowners, never has to explain why a certain project could not be relocated or downsized in a manner that would have a lesser impact to wetlands. Plaintiffs argue that SAJ-86 functions as a tool for St. Joe to avoid the alternatives analysis of the individual permit process and that, in essence, St. Joe has “bought” itself an exemption by offering to conserve vast areas of land within its holdings in exchange for enjoying the freedom to develop the remainder of its land in any manner it sees fit, without the burdens of compliance with the CWA individual permitting process. Finally, plaintiffs fear that if the Court upholds SAJ-86, it will serve as a model for other landowners to negotiate similar development rights with the Corps through regional general permits. The Corps admits it is not aware of ever having issued an RGP on this scale before. As stated by the Corps, in this instance, it “has used its discretion to customize the procedural requirements of a general permit to best suit the nature of the particular activity involved.” Doc. 52 at 5. See also, AR 3869 (statement by Corps that the proposed RGP “would be a holistic approach to the review of the numerous projects proposed for the area”). Additionally, there is evidence in the Administrative Record that the Corps is interested “in us[ing] this process in other geographic areas.” AR 115 (West Bay to East Walton Wetland Permitting Strategic Plan). But see, AR 3636 (comment by Corps’ project manager for SAJ-86 (Gordon Hambrick) that he was “not aware” of “the likelihood of any other Districts” issuing such permits). However, whether this use and future like uses of regional general permits are unprecedented is beside the point because, as noted above (and further discussed below), this Court’s review is limited to determining whether the statutory and regulatory requirements for issuance of this permit have been met and does not include a judgment of whether using RGPs in this way makes sound regulatory policy. The general permitting provisions were added to the Clean Water Act by Congressional amendment in 1977 to reduce the administrative paperwork and delay otherwise caused by having the Corps review every proposed dredge or fill activity under the individual permitting scheme. S.Rep. 95-370, *80 (July 28, 1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4405; H.R. Conf. Rep. 95-830, *98 (Dec. 6, 1977), reprinted in 1977 U.S.C.C.A.N. 4424, 4473. While plaintiffs note that in the past the Corps has used the general permitting procedures for categories of activities that are narrowly defined, such as homeowner docks, utility poles or navigation aids, general permits have also been used to authorize dredge and fill activities to support projects that are more broadly defined, such as oil spill cleanup (NWP 20), recreational facilities (NWP 42), cleanup of hazardous and toxic waste (NWP 38), mining activities (NWP 44), and' — similar to this permit — residential, commercial and institutional development (NWP 39), and residential and commercial development (SAJ-74). Additionally, while most general permits do provide concrete acreage limits to the amount of dredge and fill activities authorized by these projects, other general permits contain no preset limits. See, e.g., NWP 38 (authorizing cleanup of hazardous and toxic waste with no preset limits); NWP 21 (authorizing surface coal mining activities with no preset limits); SAJ-74 (authorizing residential and commercial development in Dade County with no preset limits). Thus, the Court cannot say either by the language of the statute, history or logic that general permits are unalterably reserved for certain narrow types of uses or that SAJ-86 operates in a manner that obliterates any necessary distinctions between individual and general permitting processes. As long as a permit meets the statutory and regulatory requirements for its issuance (which challenges are addressed below as they relate to SAJ-86), the novelty or scope of a general permit’s proposed usage does not alone create grounds for the Court to find it to be outside the law. The Corps can issue general permits for categories of activities which are similar in nature and whose impacts will have minimal adverse effect on the environment. As detailed above, in arriving at those determinations, the Corps is required to evaluate the proposed permit in terms of the public interest factors and the 404(b)(1) guidelines, including consideration of alternatives. That the analysis does not include consideration of alternatives to any specific individual project is a feature contemplated by the entire general permit regulatory scheme — in other words, full-blown individual project review is precisely the step that Congress intended to avoid under the general permitting scheme. See S. Rep. 95-370, *74 (July 28, 1977) (summarizing 1977 inclusion of general permits in Clean Water Act amendments as “a mechanism for eliminating the delays and administrative burdens associated with [the Corps’ permitting] program”); Wyoming Outdoor Council v. U.S. Army Corps of Engineers, 351 F.Supp.2d 1232, 1253 (D.Wyo.2005) (“The Corps believes that the general permit program fulfills Congress’ desire to ease the impact of the [individual permit program] upon the public and the Corps by eliminating the delays and administrative burdens associated with unnecessary review of those activities.”) (citations and quotations omitted). See also, Ohio Valley Environmental Coalition v. Bulen, 429 F.3d 493, 503 (4th Cir.2005) (describing the process for obtaining authorization under a general permit as being “significantly more expeditious” than the process for obtaining an individual permit). The Court therefore rejects plaintiffs’ argument that the scope of SAJ-86 renders it unlawful on its face. (2) Does SAJ-86 meet the CWA requirement that a category of authorized activities be “similar in nature”? Plaintiffs claim the broad range of activities authorized by SAJ-86 are not “similar in nature,” as required for issuance of a CWA general permit. SAJ-86 “applies to the discharges of dredged or fill material into non-tidal waters of the United States for[:] the construction of residential, commercial, recreational and institutional projects, including building foundations, building pads and attendant features that are necessary for the use and maintenance of the structures. Attendant features may include, but are not limited to, roads, parking lots, garages, yards, utility lines, and stormwater management facilities. Residential developments include multiple and single unit developments. Examples of commercial developments include retail stores, light industrial facilities, restaurants, business parks, and shopping centers. Examples of recreational facilities include playgrounds, playing fields, golf courses, hiking trails, bike paths, horse paths, stables, nature centers, and campgrounds. Examples of institutional developments include schools, fire stations, government office buildings, judicial buildings, public works buildings, libraries, hospitals, and places of worship.” SAJ-86 (AR 3876-77). Although the permit itself does not explain how these activities are similar in nature, in response to a public comment which challenged the proposed permit on the ground that it failed to conform with this CWA statutory requirement, the Corps stated that these activities are “similar in nature” because they are all components of “suburban development.” AR 3856. The term “similar in nature” is not defined by the CWA but plaintiffs argue that its meaning is not ambiguous, and the broad range of activities authorized by SAJ-86 could not possibly meet the definition. Plaintiffs alternatively argue that even if the phrase is ambiguous, the Corps’ interpretation should not be accorded Chevron deference because its “interpretation” is not a “formal interpretation” by the agency and therefore should only be upheld if it has the “power to persuade,” which plaintiffs claim it does not. The Corps argues that the meaning of “similar in nature” is ambiguous and that, in the absence of Congressional definition of the term, the Corps’ interpretation of the phrase’s meaning should be accorded Chevron deference, or, if its regulations do not address it, that its informal interpretation here has the power to persuade. Few reported cases discuss the meaning of “similar in nature” as used in this statute. One is Alaska Center for the Environment v. West, 157 F.3d 680 (9th Cir.1998), in which five general permits were challenged: one that applied to residential buildings under 50 feet high; one to residential streets no more than 75 feet wide; one to public and private institutions and businesses authorized by a municipal code, with certain exclusions; one to particular industrial developments; and one to specific types of environmental enhancement projects. 157 F.3d at 681, 683. In determining whether the ranges of activities authorized under each permit were “similar in nature,” the court addressed whether the category of activities under the permits was overly broad, such as the residential building general permit which authorized “single[ and] two-family dwellings, row houses, rooming homes and other residential structures.” Id. at 683. The court found the statute did not address whether the Corps was required to issue a general permit only where the category of activities was narrowly defined or whether it could, as the Corps had done in that case, use a general permit to categorize a broader list of activities which would, by virtue of the permit’s general and special conditions, result in activities which the Corps found were similar in nature. Id. The court therefore looked to the Corps’ construction of the statute and found that it made a reasonable determination to rely on permit conditions to ensure that the permit activities would be similar in nature and that its decision to do so was not arbitrary and capricious. Id. at 684. In Wyoming Outdoor, the court looked at the meaning of “similar in nature” in the context of a general permit which authorized dredge and fill activities to support oil and gas production in Wyoming. 351 F.Supp.2d at 1257. There, the activities authorized by the permit included “surveys, roads, well pads, utilities, reservoirs, erosion control, hazardous waste cleanup, and mitigation.” Id. Noting that the statute did not define “similar in nature” and that there was no formal Corps regulation qualifying for Chevron deference, the court looked to the Corps’ interpretation to determine whether it had the power to persuade. Id. at 1257-59. In answering this question, the court considered that there were myriad ways in which activities could be categorized (such as by size, type of mineral extracted, physical characteristics, location, or purpose), and that the Corps determination to categorize them based on them purpose (oil and gas exploration) was a reasonable method of differentiating between types of activities and of determining that they were similar in nature. Id. at 1259. The Court’s “first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). In doing so, the Court assigns words their “ordinary meaning,” assuming that “Congress said what it meant and meant what it said.” Wilderness Watch v. Mainella, 375 F.3d 1085, 1092 (11th Cir.2004) (quotation and citation omitted) (finding that Wilderness Act’s prohibition against all but “necessary” motor vehicles could not possibly encompass Park Service’s use of fifteen passenger van to ferry tourists across designated wilderness areas). Ergo, “[c]ommon sense is the most fundamental guide to statutory construction.” Id. at 1093, n. 9. As the parties well know, the Court issued a preliminary injunction in this case in part based on its determination that when the term “similar in nature” was applied to the category of activities listed in SAJ-86, common sense dictated that the vast array of activities allowed could not be deemed to be “similar in nature.” The Court therefore found there was no ambiguity in the statute and thus had no occasion to consider according Chevron deference to the Corps’ interpretation of the statute. Now, having been aided by the additional briefing and argument by all sides, the Court has taken a fresh, deeper look at this issue. The Corps is now arguing that the category of activities permitted by SAJ-86 is defined not only by the lengthy list outlined above (which the Court earlier found and still maintains could not possibly be deemed to be similar in nature, especially when the list flatly states that it contains only examples of the activities to be permitted, implying that other activities not even mentioned could be authorized by the permit as well), but by the other conditions of the permit, which the Corps argues operate in a manner to give concrete limits to what otherwise might be a limitless list of activities. For example, while the Court questioned whether the permit activities could just as easily describe “urban development” or “development,” the Corps has now explained that by limiting the road and bridge widths to 100 feet, by significantly restricting the amount of land that can be developed in the permit region, and by implementation of the other permit conditions, only “suburban development” activities could comply. When the category of activities in viewed in this light, the Court finds that the term “similar in nature” is ambiguous in that it is not clear whether Congress intended the Corps to frame the authorized category through use of permit conditions, as opposed to by just a list of activities, or a combination of both, any of which would be a reasonable interpretation of what Congress may have intended. The parties and the Court have found no legislative history bearing on this issue. Therefore, pursuant to Chevron, the Court next turns to the Corps’ regulations. The Corps does rely on a regulation that discusses the “similar in nature” requirement, 33 C.F.R. § 323.2(h): (h) The term general permit means a Department of the Army authorization that is issued on a nationwide or regional basis for a category or categories of activities when: (1) Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or (2) The general permit would result in avoiding unnecessary duplication of regulatory control exercised by another Federal, State, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal. 33 C.F.R. § 323.2(h) (internal cross-references omitted). However, this regulation does not define “similar in nature,” it defines the term “general permit.” Moreover, in allowing the Corps to issue a general permit for categories of activities which are “substantially similar in nature” (emphasis added) or when the general permit issuance “would result in avoiding unnecessary duplication of regulatory control,” the regulation impermissibly seeks to expand the statutory language and allows the Corps to ignore the statutory requirement that a category of permitted activities be “similar in nature.” Such an interpretation cannot be a permissible construction of the statute and is therefore not due to be afforded Chevron deference. Johnson, 436 F.3d at 1274. The Court must therefore consider whether the Corps’ finding that the category of activities authorized by SAJ-86 is “similar in nature” should be accorded respect because it has the “power to persuade.” Gonzales v. Oregon, 126 S.Ct. at 915; Mead Corp., 533 U.S. at 234, 121 S.Ct. 2164; Skidmore, 323 U.S. at 140, 65 S.Ct. 161. See also, Wyoming Outdoor, 351 F.Supp.2d at 1258 (describing Corps determination that category of activities were similar in nature as a decision that could not be accorded Chevron deference but that should still be upheld if it had the power to persuade). In making this determination, the Court considers whether the decision is thorough, logical, based on expertise, consistent with Corps precedent, and any other factor suggesting that the decision is persuasive. Mead, 533 U.S. at 235, 121 S.Ct. 2164. The Corps argues that the category of activities here is similar in nature because they are all components of suburban development and the special and general conditions of the permit ensure that only suburban development activities would meet the permit terms. The Corps also states that the uniform topography and undeveloped character of the geographic region covered by this permit combined with the limits to the developable area within each sub-basin further ensures that activities associated with other types of development (such as urban development) would not be authorized by this permit. The Corps explains that its objective in proposing this permit was to guide the inevitable suburban growth that was about to take place along the U.S. Highway 98 corridor in a manner which maximized protection of the wetlands. The only mechanism to do this, explains the Corps, is through a general permit which captures the various types of development activities the potential permit seekers would likely propose. The Corps further notes that its finding in this regard is reasonable because past permits, such as NWP 39 and SAJ-74 had similarly categorized activities. Thus, the Corps claims, in this unique circumstance, issuing a general permit for a range of activities that encompass all the features of suburban development was a reasonable interpretation of the statute it is charged with administering. In both Alaska Center and Wyoming Outdoor, the courts found that the CWA permitted the Corps to meet the similar in nature definition of a category of activities based on more than the labels of the activities themselves. In Wyoming Outdoor, the court found the Corps interpretation of the statute, which permitted it to take a divergent group of activities (ranging from roads to reservoirs to utilities to mitigation), and to consider the purpose of the activities (oil and gas exploration) to find them to be similar, was “sufficiently persuasive,” and therefore the Corps’ finding “was not arbitrary and capricious.” 351 F.Supp.2d at 1258-59. Similarly, in Alaska Center, the court found that the Corps “made a reasonable determination” and “did not act arbitrarily or capriciously” in relying on general and specific conditions of the permits to satisfy the similar in nature requirement because those conditions “provide[d] further limitations which narrow[ed] application of the permits to a substantial degree,” thus ensuring that the result was a category of activities which were similar in nature. 157 F.3d at 683-84. See also, Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 498 (4th Cir.2005) (holding that Corps could define a category of activities by reliance on permit’s special conditions). Here too, the Court is satisfied that the Corps’ reliance on the special and general conditions of SAJ-86 sufficiently tailor what otherwise might be a virtually limitless list of activities into a category of activities that are sufficiently similar in nature. The Corps’ decision to issue this permit for these activities was based on four years of discussions and negotiations between the Corps, St. Joe and other federal and state agencies as well as the public over how to manage growth in the area while preserving natural resources. The Corps envisioned issuing a permit that would capture all of the expected dredge and fill activities that would be necessary to support the expected suburban development in the region. The Corps narrowed the types of activities that would be authorized by creating special permit conditions that limit road and bridge widths and that restrict areas to be developed by using multiple sub-basins and limiting to a specific percentage the amount of wetlands that can be dredged or filled. The Corps considered past permits that had issued for similar categories of activities. In these circumstances, the Court finds the Corps’ determination that the category of activities for this permit is similar in nature, a decision which Congress left for the Secretary to make, is sufficiently persuasive as to be accorded respect. Mead, 533 U.S. at 235, 121 S.Ct. 2164 (findings that are thorough,- logical, based on expertise, and consistent with prior interpretations to be accorded respect proportional to their power to persuade). However, the Court does have some concern that the label (suburban development) that describes the category of activities authorized by SAJ-86 differs from most other past and current general permits the Court has reviewed in that with most other permits, it is obvious from the name of the permit how the category of activities permitted are similar in nature. See, e.g., NWP 1 (aids to navigation); NWP 2 (structures in artificial canals); NWP 5 (scientific measurement devices); NWP 11 (temporary recreational structures); NWP 36 (boat ramps); NWP 43 (stormwater management facilities); SAJ-13 (aerial transmission lines in Florida); SAJ-20 (private single-family piers in Florida); SAJ-33 (private multi-family and government piers in Florida); SAJ-34 (commercial piers in Florida); SAJ-77 (residential fill in Jupiter Farms, Palm Beach County); SAJ-78 (residential fill in Palm Beach Estates, Palm Beach County). With SAJ-86, the only reference by the Corps that this permit is for suburban development comes in a response to a public comment that criticized the Corps for preparing to issue SAJ-86 because it did not provide for a category of activities which were similar in nature, to which the Corps responded that the “activities essentially involve the placement of fill material into two pre-identified and evaluated classes of wetlands for the construction of various components that typically comprise suburban development.” AR, 3856. The Corps response further explained that NWP 39 authorized nearly identical activities. AR 3856-57. These statements are found only in the Memorandum for Record/Statement of Findings, which is not attached to the permit itself, and which in fact is apparently only available to the public upon written request. See 33 C.F.R. § 325.2(a)(8). Thus, a potential permit user would not necessarily know that his proposed development activity should fit the category of “suburban development.” However, given the limits that the permit conditions place on the development activities, it appears that only those activities that conform to suburban development would in fact be able to meet the permit terms and secure authorization under SAJ-86. Additionally, there is no statutory (or regulatory) requirement that the label which ties the authorized activities together be contained on the face of the permit and while it may have been preferable for the Corps to do so, the Court cannot say it acted in an arbitrary and capricious manner in failing to do so. The Court is also concerned by what appears to be the Corps’ post-hoc adoption of the suburban development label as the term to categorize the activities permitted by SAJ-86. While the Memorandum for Record certainly pre-dated the permit issuance, a general permit cannot be issued unless the Secretary finds that it is for a category of activities that are similar in nature — thus, one could anticipate that the Secretary would make a preliminary finding in that regard, references to which would be found in the record well before the public comment period, which postdated the Corps’ August 29, 2003 public notice that it was proposing to issue this general permit. Again, however, that this might have been handled differently does not make it arbitrary and capricious. Satisfied, though barely, that the Corps has met the statutory requirement that SAJ-86 authorize a category of activities that are similar in nature, the Court now turns to the Corps’ compliance with a Corps regulation which bears consideration in this regard. As discussed above, 33 C.F.R. § 323.2(h) permits the Corps to issue a general permit upon finding that the activities to be authorized are “substantially similar in nature” “or” upon finding that the issuance of the permit “would result in avoiding unnecessary duplication of regulatory control exercised by another Federal, State or local agency,” provided that in either case, the Corps further determine that the environmental consequences of the action are individually and cumulatively minimal. 33 C.F.R. § 323.2(h)(1) and (2). Here, the Court has determined not to upset the Corps’ determination that the category of activities are similar in nature, but the first part of this regulation speaks of activities being “substantially similar” in nature. Whether this is different from “similar in nature” is a matter for debate. 33 C.F.R. § 323.2(h)(1) and (2). However, because the Corps has met the second part of the regulation (“avoiding unnecessary duplication of regulatory control exercised by another Federal, State or local agency” 33 C.F.R. § 323.2(h)(2)), the Court need not resolve this question. The Corps determined that the RGP would decrease duplication of effort with the DEP permit program (see, e.g., AR 3857 (describing decreased duplication of efforts with RGP)). Moreover, the avoidance of issuing multiple permits under the individual permit scheme, which also implicates the work of “other” federal and state agencies, was a motivating factor in the Corps’ decision to approach St. Joe about the creation of SAJ-86 in the first place. Plaintiffs have not argued any contrary position and the Court finds the Corps determination to issue SAJ-86 does not run afoul of this regulation. The CWA authorizes the Secretary [of the Department of the Army, acting through the Chief of Engineers] to issue general permits “if the Secretary determines that the activities in such category are similar in nature ...” 33 U.S.C. § 1344(e)(1). Although this is admittedly an extremely close call, the Court finds the Corps has not acted arbitrarily or capriciously, abused its discretion, or acted contrary to law in applying the statute or its implementing regulations to find that the category of activities authorized by SAJ-86 is similar in nature. (3) Does SAJ-86 meet the CWA requirement that a category of authorized activities will cause only minimal adverse environmental effects? Plaintiffs further claim that the Corps violated the CWA because the activities authorized by SAJ-86 will cause more than minimal adverse environmental effects. The CWA authorizes the Corps to issue a general permit for activities which “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). SAJ-86 authorizes a wide range of activities and the Corps acknowledges that “[t]he construction and operation of these various developments ... would have direct, indirect and cumulative impacts on onsite wetlands and waters; but no direct and only minimal indirect impact on aquatic resources outside the [SAJ-86] project area, which include wetlands and receiving waterbodies.” AR 3804. Indeed, within the RGP area, the permitted activities are anticipated to result in the dredge and fill of up to 1500 acres of wetlands (and possibly more, see AR 3722 (stating wetlands impact under permit may be up to 2037 acres)) and, within that limit, up to 20% destruction of low quality wetlands within any one of the nineteen sub-basins and impacts of up to 125 total acres of high quality wetlands. Neither the CWA nor the Corps regulations define what is meant by “minimal effects” and its meaning is not intuitively obvious in the context of this dispute. In the Court’s preliminary injunction Order, the Court did not address what “minimal effects” meant, but found that the statute required the Corps to make its minimal effects determination before the permit issued and that SAJ-86 violated the statute by permitting the Corps to make its minimal effects determination after the permit issued when an applicant proposed a specific project. See Doc. 72 at 16-20. The Court’s analysis rested on two premises: first, as found by Ohio Valley Environmental Coalition v. Bulen, 410 F.Supp.2d 450 (S.D.W.Va.2004), the plain language and legislative history of the CWA’s general permitting scheme prohibited the Corps from issuing a general permit “predicated on post-issuance review and approval of particular projects” (Ohio Valley, 410 F.Supp.2d at 467); and second, because the actual projects to be authorized by SAJ-86 were unknown, and because different types of projects can have different types of impacts, the Corps could not assess what the impacts of any projects would be in advance of the permit’s issuance. Thus, the Court preliminarily found SAJ-86 violated the statutory requirement that a general permit issue only upon finding that the authorized activities will have only minimal adverse environmental effects. Doc. 72 at 19-20. Now, the Fourth Circuit has vacated that aspect of the Ohio Valley district court decision upon which this Court heavily relied. Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493 (4th Cir.2005). Additionally, with the benefit of further argument and briefing, and additional study of the entire administrative record (which was only provided to the Court after it decided the preliminary injunction motions), the Court has given this issue renewed consideration. Plaintiffs raise three main challenges as to why the Corps’ issuance of SAJ-86 fails to meet the CWA’s minimal effects requirement, and is therefore arbitrary and capricious, arguing first, that the amount of wetlands SAJ-86 allows to be impacted is per se more than minimal; second, the Corps improperly relies on