Full opinion text
AMENDED DECISION AND INJUNCTION BREWSTER, Senior District Judge. In this Endangered Species Act (“ESA,” 16 U.S.C. §§ 1531-1544) case, fourteen national, state, and local conservation and environmental groups (hereinafter “Plaintiffs”) challenge the decision of the United States Fish and Wildlife Service (hereinafter “FWS” or “Federal Defendants”) to issue an incidental take permit (“ITP”) under § 10 of the ESA to the City of San Diego based upon its conservation plan. This Court has jurisdiction under the citizen suit provision of the ESA. § 1540(g). Though the City’s ITP governs 85 species, Plaintiffs’ lawsuit is limited to seven vernal pool species — two small aquatic crustacean species (San Diego fairy shrimp and Riverside fairy shrimp) and five plant species (Otay mesa mint, California Orcutt grass, San Diego button celery, San Diego mesa mint, and spreading navarretia (also known as prostrate navarretia) — which are listed as “endangered” or “threatened.”) Third Amended Complaint ¶ 41-42 (“TAC”). A construction company and four building associations intervened (hereinafter “Builder Intervenors”) and filed a cross-complaint against the Federal Defendants and the City of San Diego to challenge the scope of the ITP provisions on those same seven vernal pool species. South/ivest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820-22 (9th Cir.2001); Cross Compl. ¶ 9-12; see Order Resolving Subject Matter Jurisdiction at 4-5 (filed Sept. 8, 2004). Having considered the administrative record, the legal briefs, and the relevant case law, it appears to this Court that the ITP would permit monumental destruction of the vernal pool species, which are extremely sensitive to their environment and were virtually extinct in 1995. The Court finds that FWS overlooked an important aspect of the operation of the Assurances because the malleable standard — to avoid the pools when “practicable” — virtually guarantees development and the ersatz mitigation measures run counter to the realistic needs of these dwindling vernal pool species and may hasten their extinction. It is undisputed that the fairy shrimp cannot be transferred by human transplant from one area to another with any measure of reliability or survivability. Yet, a close examination of the record reveals that FWS has authorized extensive development of lands containing vernal pools that would destroy essential habitat for these rare species under the guise of obtaining promises for “mitigation” in other areas. The ostensible “mitigation” is inadequate to ensure that the fairy shrimp will survive and recover to the point where they need not be listed for protection of the ESA. In short, while vigorous development is certain, the purported mitigation is unlikely to conserve the listed species. Moreover, the record does not support FWS’s finding that the City of San Diego would fund its share of the conservation plan. The Court finds that this plan violates both the spirit and letter of the ESA. More specifically, the Court finds that FWS must re-initiate consultation proceedings on the City’s ITP because the avenue of seeking permits from the United States Army Corps of Engineers (“ACOE”) is no longer available for vernal pools, and the remaining conservation measures are inadequate to protect these fragile species. FWS concedes that it did not examine the impact of the City’s plan on the vernal pool species because FWS did not anticipate any impact on those species; instead, FWS expected to evaluate any impact on particular sites in future permit procedures. That structure violates the ESA as to the vernal pool species in this case because FWS has locked in any mitigation that could be recommended or would be required to the measures delineated in the City’s conservation plan — the very plan that FWS did not assess for adequate protection of the vernal pool species because it deferred that evaluation to future proceedings and that uses mitigation measures that FWS had previously concluded are ineffective, experimental, and inadequate given the strict needs of the imperiled vernal pool species. The position of FWS thus circles back onto itself, and the species are left in a “heads I lose, tails you win” position that substitutes inadequate conservation measures in the place of the strict conservation and recovery standards of the ESA. Consequently, the Court finds that the Assurances in the Implementing Agreement (“IA”), as applied to the vernal pool species, violate the ESA because they are inconsistent with the governing statutory command to conserve the vernal pool species to bring them to the point at which protection by the ESA is no longer necessary. § 1523(3). One might ask, when all is said and done, “who cares about the fairy shrimp and the other vernal pool species?” Fairy shrimp, when they manage to survive to adulthood, are one-quarter inch fully grown. For the most part, they are hard to see by the naked eye. There are not many left, and if gone, who would miss them? Surely, the casual observer passing through the Southern California landscape would not notice one way or the other. The biologists tell us that every species has an essential and unique roll to play in the food chain that supports us all. If the fairy shrimp ultimately become extinct in the San Diego region, they will cease to be a devourer of lower forms of life in the food chain, such as bacteria and micro algae on clay particles, which could impact control on the species below. Similarly, the fairy shrimp would not be available food for creatures above in the chain, such as waterfowl and toads, who look to them for their diet. In the microscopic view, the fairy shrimp may make little identifiable difference. But if this type of destruction is treated on a case-by-case basis as an unimportant loss, it does not take long before life on this planet is in jeopardy. Congress saw that threat when it enacted the ESA. § 1531(b). Congress demonstrated foresight by realizing that the country’s present understanding of the value of a myriad of life forms was not yet known, and that extinction should be prevented by protecting both the individual species and the ecosystems upon which those species depended for survival. Id. It is not for this Court to be sympathetic or unsympathetic to the vernal pool species, but it is the Court’s obligation to interpret and follow the law as written. This permit, with its massive development of vernal pool habitat and highly questionable mitigation techniques for a species that cannot be simply gathered and moved to another location, violates the fundamental objective of the ESA to conserve listed species to bring them to the point at which statutory protection is no longer necessary. The Court declines to approve it. I. Endangered Species Act The ESA, enacted by Congress and signed by the President, reflects a national concern for the preservation and replenishment of a rapidly growing list of species who are threatened or endangered with extinction. “The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 175, 184 & n. 29, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’” Id. at 194, 98 S.Ct. 2279. “Congress was concerned about the unknown uses that endangered species might have and about the unforeseeable place such creatures may have in the chain of life on this planet.” Id. at 178-79, 98 S.Ct. 2279. The statute clearly states that the purpose is to protect and preserve endangered species. The stated purposes of the ESA “are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species,” and to comply with international treaties to protect wildlife, birds, fish, and plants. § 1531(b); § 1531(c)(1); § 1536(a)(1); § 1537; § 1539(a)(2)(A). Congress broadly defined “conserve” as “the use of all methods and procedures which are necessary to bring any endangered species and threatened species to the point at which the measures provided [by the ESA] are no longer necessary.” § 1532(3). “[T]he ESA was enacted not merely to forestall the extinction of species (ie., promote a species survival), but to allow a species to recover to the point where it may be delisted.... [I]t is clear that Congress intended that conservation and survival be two different (though complementary) goals of the ESA.” Gifford Pinchot Task Force v. United States FWS, 378 F.3d 1059, 1070 (9th Cir.2004) (invalidating FWS’s interpretation of a regulation that narrowed scope of protection commanded by clear language in ESA). As aptly stated by one district court, “[t]he whole purpose of listing species as ‘threatened’ or ‘endangered’ is not simply to memorialize species that are on the path to extinction, but also to compel those changes needed to save the species from extinction.” Oregon Natural Resources Council v. Daley, 6 F.Supp.2d 1139,1152 (D.Or.1998). Congress imposed this mandatory duty to conserve endangered species on all federal agencies. Tennessee Valley, 437 U.S. at 180, 98 S.Ct. 2279 (citing § 1531(c)(1)); see also Defenders of Wildlife v. United States EPA, 420 F.3d 946, 965 (9th Cir.2005) (concluding that sections 7(a)(1) and 7(a)(2) imposed separate and distinct requirements to mandate and authorize all federal agencies to conserve endangered species and their ecosystems). II. Standard of Review “Because ESA contains no internal standard of review, section 706 of the Administrative Procedure Act, 5 U.S.C. § 706, governs review of the Secretary’s actions.” Village of False Pass v. Clark, 733 F.2d 605, 609 (9th Cir.1984); Friends of Endangered Species v. Jantzen, 589 F.Supp. 113, 118 (N.D.Cal.1984) (summary judgment is appropriate vehicle to review administrative action), affd, 760 F.2d 976 (9th Cir.1985). Agency decisions cannot be inconsistent with the governing statute. Defenders of Wildlife, 420 F.3d at 959; 5 U.S.C. § 706(2)(A) (“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Court must determine whether the agency “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). In other words, whether the agency “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 v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court has conducted a “thorough, probing, in-depth review.” Citizens to Preserve, 401 U.S. at 415, 91 S.Ct. 814. The Court has carefully read and laboriously studied the AR submitted by the parties, and will not repeat that extensive factual background. Instead, the Court has cited the sections of the Record that informed the Court’s decision and incorporates by reference those passages into this Order. III. The Vernal Pool Species are on the Brink of Extinction The Riverside fairy shrimp, San Diego fairy shrimp, California Orcutt grass, Otay Mesa mint, San Diego button celery, San Diego mesa mint, and spreading navarretia are listed as “endangered” or “threatened” species. 63 Fed.Reg. 54975-93 (1998); 62 FedReg. 4925-38 (1997); 58 FedReg. 41384-91 (1993); 43 FedReg. 44812 (1978). The Court incorporates by reference the entirety of those detailed descriptions of their particular vulnerabilities and precise needs. E.g., AR 26257, 28862-64, 31491, 31506, 32463-81, 32472, 32880-94. Here, the Court briefly highlights the critical attributes of the two fairy shrimp. The San Diego fairy shrimp and Riverside fairy shrimp inhabit vernal pools — a fragile, strict, narrow, and unique habitat — that form in shallow depressions on hard-clay mesas. Vernal pools are seasonal — the pools contain water in the short winter months but can be difficult to discern in the landscape during the long dry months. The fairy shrimp hatch, mature, reproduce, and inhabit the pools during their short life cycle. Fairy shrimp eggs lie dormant during the dry season, and may hatch in the next wet season. These fragile species are extremely sensitive to their environment (including a specific amount of water; a narrow range of water temperature; the water quality, chemistry, and salinity; the length of time the pool holds water before it percolates into the clay soil). Only Southern California’s Mediterranean climate supports this specific habitat, and 97% of the habitat has been irrevocably destroyed. The fairy shrimp are extinct in Los Angeles and Orange counties, and close to extinction in nearby Riverside and Ventura counties. Of the remaining acres, the Record rarely indicates whether and how many fairy shrimp actually inhabit the pools, or assesses the quality in the vernal pool complexes. E.g., AR 30094-95, 31905-06, 32478; 58 Fed.Reg. at 41385. Vernal pools cannot be “created” and there is no known method to replace destroyed pools. E.g., 62 Fed.Reg. at 4931; AR 32472; Fed. Defs.’ Answer to TAC ¶ 44. As applied to the vernal pool species, the “creation” of off-site vernal pools is ineffective and unacceptable mitigation. 62 Fed.Reg. at 4931 (attempts to collect and move vernal pool species failed; and re-introducing species into other pools risks hybridization); AR 23724, 24435 (because creation of vernal pool habitat is not successful, “the wildlife agencies do not accept creation as mitigation for vernal pool impacts”); AR 32472 (FWS concludes that efforts to “create” vernal pools by transporting the soil are unsuccessful, unscientific, and unmonitored; and transplanting species had not been tested or proven successful). IV. The City’s Application for a Regional § 10 Incidental Take Permit and FWS Findings The ESA makes it unlawful to “take” or harm a listed species. § 1532(19); Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir.1995) (harm is “defined in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.”); National Wildlife Fed’n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1513 (9th Cir.1994) (includes habitat degradation that prevents or possibly retards recovery of species); see also § 1538(a)(1) (endangered species); 50 C.F.R. § 17.31 (extending take prohibition to threatened species); Babbitt v. Siveet Home Ch. of Communities, 515 U.S. 687, 696-701, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). Section 10 of the ESA provides a narrow exception of a “regulated kill.” § 1539(a)(1)(B); National Wildlife Fed’n v. Norton, 306 F.Supp.2d 920, 926 (E.D.Cal.2004). In specially-controlled situations, Congress allows the sacrifice of a certain number of creatures provided that adequate steps are taken to minimize the detriment in a manner that ensures the continued vitality of the species involved overall. Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1278 n. 3 (SD.Ala.1998) (an applicant for an ITP must submit an HCP “that will — as the name plainly connotes — help ‘conserve’ the entire species by facilitating its survival and recovery.”). To apply for a § 10 permit, the property owner or developer must prepare a detailed application. Known as a Habitat Conservation Plan (“HCP”), it must contain specific information, analysis, and plans (including financial support) that specify how the applicant will “minimize and mitigate” the adverse impact on the protected species. § 1539(a)(2)(A). This litigation concerns the issuance of an ITP on a regional scale. 60 Fed.Reg. 12246, 12247 (March 6, 1995); e.g., AR 40-48, 5523, 15079-80, 25595-600, AR 39464, 39477, 39614-16, 39498, 39683-88. An important purpose of this regional approach was to streamline the permit process so that the City would issue ESA take permits directly to developers (known as “Third Party Beneficiaries”). AR 6300, 13624, 19308, 23210, 24679, 39477. The City obtained an “umbrella” permit from the FWS to kill species with mitigation, and developers seeking approval of specific projects obtain authorization/rom the City rather than going through their own cumbersome application and review process with the FWS. AR 23210; AR 15080; AR 25639; AR 26583-85 (IA § 17.0). The ITP covers 543,243 acres within San Diego county. AR 39482; see generally AR 6780-82; AR 23189-90. The City of San Diego’s HCP consisted of two documents. The MSCP provided general, regional framework plan. The Subarea Plans contained specific components of each jurisdictions’ portion of the entire MSCP area, and the City of San Diego prepared its local Subarea Plan. AR 19617; see AR 26548 (IA § 2.12). The Court will not repeat the factual background of the regional and local conservation plans, but incorporates the substance of those provisions into this Order. FWS must scrutinize the proposed HCP and determine if it satisfies the specific legal and biological requirements of the ESA. § 1539(2)(B). In addition to the specific standards in § 10, FWS has an overarching duty to conserve listed species by maintaining a viable population. §§ 1532(3), 1536(a)(1), (a)(2). FWS is obligated to use its authority to further the purpose of the ESA to conserve listed species to the point that the substantive and procedural protections of the ESA are no longer required. § 1536(a)(1); see §§ 1532(6), (20) (defining threatened and endangered listings); Gif-ford, 378 F.3d at 1070. FWS must ensure that its issuance of an ITP “is not like to jeopardize the continued existence of any endangered species.” § 1536(a)(2); Turtle Island Restoration Network v. National Marine Fisheries Serv., 340 F.3d 969, 974 & n. 9 (9th Cir.2003); see generally Defenders of Wildlife, 420 F.3d at 963-67 (describing mandatory duty to guarantee “an additional, do-no-harm obligation”); National Wildlife Fed’n v. Babbitt, 128 F.Supp.2d 1274, 1286 (E.D.Cal.2000). Thus, the City’s permit application must satisfy the ESA goal of conservation, which will allow the species to recover in order to “reverse the trend to extinction.” Tennessee Valley, 437 U.S. at 153, 98 S.Ct. 2279; Sierra Club v. Babbitt, 15 F.Supp.2d at 1278 n. 3 (“Pursuant to section 10, the FWS may issue a permit for the ‘incidental take’ of some members of the species, if the applicant for the permit submits a ‘conservation plan’ that will — as its name plainly connotes — help ‘conserve’ the entire species by facilitating its survival and recovery.”). “The overall effect of a project can be beneficial to a species even though some incidental taking may occur.” Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 982 (9th Cir.1985). The opportunity for further review by the ACOE, with consultation with the FWS, for the issuance of a CWA § 404 permit was a central component of the planned protection for the vernal pools. The City’s HCP set forth other protections, and these protections are set forth in detail in the AR, including “avoidance, minimization, and mitigation measures,” AR 22446; incorporating the “no net loss” policy from the federal CWA standard, AR.19348, 19627, 22446, 39517-18, 39524-25, 39527; and enacting the Environmentally Sensitive Lands Ordinance (“ESLO”) to avoid impacts, to minimize unavoidable impacts, and to mitigate unavoidable impacts to vernal pools. AR 19671, 25727-32, 25735, 25738-39 & Table 1; see AR 13622, 25735. The centerpiece of the City’s proposed mitigation for the destruction of sensitive species, and a critical component of the regional conservation plan, was to create a permanent natural preserve. AR 39498 (MSCP § 3.1), 39592-95 (MSCP § 4.0), 39598, 39611; see AR 3219-23, 5523-24. The “Multi-Habitat Planning Area” will eventually be a 171,917 acre Preserve (“MHPA” or “Preserve”). Eventually, the Preserve will accumulate a contiguous area of vacant land with rich biological diversity that will maximize the protection of the native wildlife and plant species, and possibly, prevent further listings of endangered species. E.g., AR 39483; AR 39525 (MSCP § 3.5, 114(b)); AR 18654 (if City declined to adopt MSCP and instead let each development project apply for its own ITP, the Preserve would be the same size, but would be less effective because of fragmentation, poor design, and absence of linkages “resulting in increasing risk of species decline and endangerment”); 60 Fed.Reg. 12246, 12247 (describing goals and comparing the “no action” alternative); 61 Fed.Reg. 45983, 45984. The MSCP does not establish the Preserve; rather, it roughly delineates target boundaries. The actual acreage will be dedicated over the next fifty years. 62 Fed.Reg. 14938, 14939. Certain activities would be permitted within the Preserve, including passive recreation such as birdwatching, hiking, and horseback riding; utility lines including repair; low density residential uses; brush management; and limited agriculture. E.g., AR 19421, 19702-03, 24894. Other activities, while not endorsed, would inevitably occur, such as vehicle and foot traffic by the United States Border Patrol, illegal immigrants, and itinerant populations. E.g., AR 19677, 39644. When issuing a § 10 ITP, the FWS makes its required findings in a Biological Opinion (“BiOp”). Here, FWS issued its BiOp, made its Findings, issued a Record of Decision, entered into a contract (the IA) with the City to complete the project and offered “No Surprises” Assurances, and issued the ITP with Condition I. AR 26194-320 (June 6,1997 BiOp) (Pis.’ Ex. 11 & Fed. Defs.’ Ex. B); AR 26892-936 (July 18, 1997 Findings) (Pis.’ Ex. 9 & Fed. Defs.’ Ex. F); AR 26937-43(ROD) (Pis.’ Ex. 10); AR 26540-639 (IA July 16, 1997); 61 Fed.Reg. 45983, 45984; AR 26960-69 (ITP July 18, 1997). The Court has thoroughly read these documents and does not repeat their content in this Order. V. Analysis and Decision A. FWS Must Re-Initiate Consultation on the Vernal Pool Species 1. The Supreme Court’s Decision Eliminates ACOE Jurisdiction The Court agrees with Plaintiffs that FWS must reinitiate review of the City’s ITP for the vernal pool species in the aftermath of the Supreme Court’s Solid Waste Agency of Northern Cook County v. United States ACOE, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (“SWANCC ”) decision. To supplement the statutory duty to revoke an ITP when the terms have been violated, § 1539(a)(2)(C), FWS promulgated a regulation to retain control over the implementation of the ITP’s conservation measures. The regulation authorizes FWS to reinitiate the consultation process when the “amount or extent of taking specified in the incidental take statement is exceeded” or when “[n]ew information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16. During the time that the City drafted its habitat conservation plan and when FWS reviewed the application pursuant to the ESA, it was generally understood that vernal pools would be protected as “wetlands” under the CWA. The MSCP expressly stated that any development that would impact a vernal pool would require a separate § 404 permit from the ACOE, and that, pursuant to § 7 of the ESA, the Corps would consult with FWS to establish the mitigation measures. AR 19348, 39517-18 (MSCP § 3.2.1), 39524-25. By regulation, the ACOE had extended its jurisdictional reach to include “isolated wetlands.” 33 C.F.R. § 323.2(a)(5) (1978). FWS issued the City’s ITP on the understanding that vernal pools fell within this regulatory definition, thus, any disturbance of a vernal pool that equated with filling its basin would also require a CWA permit. AR 26269-71, 26284-88 (BiOp), 26960-61 (ITP ¶¶ D, F, & G), 26966-69. The ITP set forth that explicit requirement in Condition I. AR 26964. That assumption was subsequently extinguished by the Supreme Court. In 2001 — three years after the FWS issued the City’s ITP — the Supreme Court announced a decision that defeats the assumption that the ACOE would participate in any regulation of the vernal pools in Southern California. In SWANCC, 531 U.S. at 171, 121 S.Ct. 675, the Supreme Court held that the ACOE did not have authority to regulate abandoned sand and gravel pits that seasonally filled with water and were physically isolated within a single state merely because migratory birds used such waters. After SWANCC, the precise contours of federal jurisdiction over wetlands in general and vernal pools in particular remain unclear. E.g., United, States v. Rapanos, 339 F.3d 447, 450-53 (6th Cir.2003) (applying SWANCC and concluding the wetlands at issue had a sufficient nexus and hydrological connection to navigable waters so as to fall within CWA jurisdiction). But it is clear to this Court that the ACOE will not undertake review through its CWA permit process of impacts to isolated vernal pools that seasonally fill with water on San Diego’s mesas. Borden Ranch Partnership v. United States ACOE, 261 F.3d 810, 816 (9th Cir. 2001) (ACOE withdrew its claim that it had regulatory authority over one isolated vernal pool), affd by an equally divided court 537 U.S. 99, 123 S.Ct. 599, 154 L.Ed.2d 508 (2002) (per curiam). Therefore, the essential mechanism through which the impacts to vernal pools species in this case would be assessed, scrutinized, and mitigated has been removed. Condition I was imperative to protect the vernal pool species. The AR is undisputed in that regard. E.g., AR 12802-03, 12833-34, 22446, 23721-22, 26285-88, 35680. FWS’s decision to issue the ITP was predicated upon future agency review; however, the Supreme Court’s SWANCC decision has closed the door to those essential future proceedings for vernal pools. The Court holds that the elimination of the anticipated future proceedings, at which time FWS would evaluate the impact of a particular project on the fate of the vernal pool species, requires the agency to re-initiate review of the substantive protections for the vernal pool species in San Diego. § 1539; 50 C.F.R. § 402.16. On remand, FWS shall evaluate the impacts of the City’s HCP on the seven vernal pool species. The Court agrees with the Federal Defendants’ position that, “[djuring or after that reinitiated consultation, the Service can consider whether it needs to seek modification or withdrawal of the MSCP, Subarea Plan, or ITP, with regard to covered vernal pool species, in accordance with applicable laws.” Fed. Defs.’ Cross Mot. for Summ. J. Br. at 50. The Federal Defendants argue that the language of the re-initiation regulation does not apply in this situation because the regulation applies when facts concerning the species have changed, and here, the law has changed. The Court does not accept this characterization. The Supreme Court’s SWANCC decision closed the ACOE’s door to the vernal pool species. The City’s ITP dictated that adverse affects on vernal pool species must be considered during the CWA permit process. But, under the rule announced by the Supreme Court, the ACOE will not exercise its jurisdiction over the vernal pools, and the applicant will be turned away. The CWA § 404 permit process, with its scientific review and assessment of the biological needs of the wetlands, will not be conducted. The facts have changed because the CWA protection route is closed. This constitutes new information that had not previously been considered that absolutely will effect the treatment, agency oversight, and implementation of mitigation and conservation measures of the vernal pools. Alternatively, the regulations require § 7 consultation to be re-initiated when the action is modified in a manner that causes effects to listed species or critical habitat that were not previously considered. 50 C.F.R. 402.16. Here, the City’s action to implement its HCP has been significantly altered because it will no longer require development projects affecting isolated wetlands to pursue a § 404 CWA permit. The City cannot seek the expert advice of the ACOE when deciding how to handle isolated wetlands that support vernal pools. SWANCC has resulted in a modification of the implementation of the HCP and compliance with the ITP. The absence of future consultations under the CWA, as well as the companion consultation with FWS, will absolutely affect the vernal pool species and its critical habitat. The Court finds that this regulation also supports the conclusion that FWS must re-initiate consultation on the City’s ITP for the vernal pool species. If the SWANCC decision does eliminate the ACOE’s CWA jurisdiction over certain vernal pools, the Court rejects the Federal Defendants’ related argument that the ITP now, by default, requires development projects to go through the ESA § 10 permit process. While courts should defer to reasonable interpretations by the agency that issued the permit, the Federal Defendants’ position is unreasonable because the ITP does not provide such a default procedure, and the Federal Defendants’ argument would require the Court to re-write the permit to insert such a default procedure into the ITP. Conversely, the Court rejects the Builder Intervenors’ untenable argument that SWANCC means that developers may effect the vernal pool species by complying with the measures in the MSCP and Subarea Plan. Those vague and porous protections are absolutely inadequate to minimize and mitigate harm to the vernal pool species. As construed by the Court, the City’s ITP expressly stated that vernal pool wetland species, as that jurisdictional line was then understood, would be the subject of the permit process of § 404 of the CWA, which included a further § 7 inter-agency consultation with FWS for compliance with the ESA. The Builder In-tervenors argue that now that the Su: preme Court has eliminated the ACOE’s authority to regulate isolated bodies of water, such as the seasonal vernal pools, the ITP can be read to grant take authority for the vernal pool species. The Court rejects this assertion as it is contrary to the evidence in the administrative record, the intent of FWS in issuing the permit, and a reasonable interpretation of the special conditions in the permit. The Builder Intervenors seek a windfall. The Court denies the Builder Intervenors’ request to “rewrite” or “reissue” the permit. The proper course is for the expert agency, in the first instance, to consider what protections are necessary when a specific development will affect the seven vulnerable vernal pool species. 2. Builder Intervenors’ Cross Complaint Lacks Merit The Builder Intervenors’ offer their own interpretation of Condition I, and their Cross Complaint contains three causes of action regarding the scope of the take authority. First, they claim that the City’s ITP, as issued, does provide authority to take the seven vernal pool species so long as the development project complies with the terms in the MSCP and Subarea Plan. Cross Compl. ¶ 36. Second, they argue FWS is legally compelled to issue a new ITP that is consistent with their interpretation. Cross Compl. ¶ 40. Third, the Builder Intervenors seek an injunction to order the Federal Defendants to issue such a permit. Cross Compl. at 16, ¶ 3. These arguments lack merit, and the Court denies their motion for summary judgment in its entirety. The Builder Intervenors first argue that language in the IA bound FWS to allow take of the vernal pool species. In their view, the IA’s list of “Covered Species Subject to Incidental Take” means that the ITP — presently and immediately — grants take authority for all species on that list, including the seven vernal pool species, so long as the particular development project is consistent with the City’s MSCP. AR 26544-45, 26596 (IA § 1.4 & Exs. C & D). The Court rejects this argument because the ITP, not the IA, defines the extent of take authorized. The Builder Intervenors rely on a simplistic reading of the phrase “Covered Species Subject to Incidental Take” in the IA as if, by itself, it grants incidental take over those species. The phrase “Covered Species Subject to Incidental Take,” however, is a term of art and is specifically defined in the IA and the related documents. The protections of the ESA apply only to those species that are officially “listed” as either “threatened” or “endangered.” § 1533. Over time, those listings change, for example, as FWS receives and acts upon applications to list a species. In order to ensure flexibility, a HCP often studies any and all species that are “of concern,” whether or not they are currently listed on the ESA. This over-inclusive planning ensures the viability of the conservation plan over time; may even prevent the need to list a species on the ESA; and benefits the health of the ecosystem since species are often interrelated and codependent upon common resources. See generally H.R.Rep. No. 97-835, at 30 (1982). The regional planning involved in this litigation also contemplated that the San Diego area was the home to sensitive species that might be candidates for listing under the ESA. E.g., AR 26544-45 (San Diego’s MSCP plants and animal species in the San Diego region includes those that “have been listed as threatened or endangered, have been -proposed for listing as threatened or endangered, are candidates for listing as threatened or endangered, or which are otherwise of concern”) (emphasis added). Thus it was prescient to include protections in the fifty-year plan. For example, the planning process considered the spreading navarretia species, even though that plant was listed as “threatened” well over a year after FWS issued the City’s ITP. 63 Fed.Reg. 54975. To further distinguish between the species under examination, or “covered,” the IA defined two categories: (1) the broader group of “Covered Species” and (2) the narrower group of “Covered Species Subject to Incidental Take.” “Covered Species” are defined as “those which will be adequately conserved by the MSCP when the MSCP is implemented through the subarea plans or will be adequately conserved through the permitting process” of CWA § 404. AR 26547 (IA § 2.6) (emphasis added). By contrast, “Covered Species Subject to Incidental Take” are “those Covered Species which are adequately conserved by the Subarea Plan, and which are therefore subject to Incidental Take under the Take Authorization issued in conjunction with this [Implementing] Agreement.” AR 26547-48 (IA § 2.7) (emphasis added). In turn, “take authorization” is defined as “the Section 10(a) Permit,” AR 26551 (IA § 2.32) (emphasis added). Thus, further reinforcing the City’s ITP as the document that defines the extent and scope of the incidental take authority. But “coverage” does not necessarily mean that the ITP authorizes incidental take of the species because any take authorization depends upon the terms of the permit. And, as stated above, Condition I of the City’s ITP expressly excluded take authorization of the vernal pool species (when within the jurisdiction of the ACOE as all vernal pools were then thought to be). Read in the proper context, the phrase “Covered Species Subject to Incidental Take” refers to those animal and plant species “adequately conserved” by the City’s Subarea Plan (either alone or in combination with another entity’s Subarea Plan). As the Federal Defendants explain, the phrase is “a proxy for species that are ‘adequately conserved’ under the Plan. Thus, the phrase was meant to identify those species adequately conserved that would receive assurances. This presents a wholly separate question from what the Plan itself requires for a species to be regarded as ‘adequately conserved.’ ” Fed. Defs.’ Mot. to Dismiss Reply Br. at 6; see also Fed. Defs.’ Alt. Summ. J. Mot. Br. at 7-8 & n. 3. And as discussed, the ITP and IA expressly required a § 7 consultation process between the ACOE (through the CWA § 404 permit proceedings) and FWS to evaluate whether any take of the vernal pool species would be authorized on a particular development project. The Builder Intervenors argue that the Federal Defendants’ interpretation of Condition I does not make sense and that it actually threatens other species dependent upon wetlands. They note that Condition I of the ITP refers to “wetland species.” AR 26964. There are 30 plant and wildlife species on the list of “wetland species”— the seven vernal pool species in this suit and an additional 23 species that are also “associated or dependent” upon “wetlands” (as that term was understood for purposes of ACOE jurisdiction). Id. The Builder Intervenors see incongruent results if only the vernal pool species require additional protections. For example, they argue that the government’s interpretation would mean that a Southwestern willow flycatcher would be protected from harm while it was standing in a vernal pool but not while it temporarily perched on a nearby fence post. Builder Intervenors’ Mot. for Summ. J. Br. on Cross Compl. at 38-40. The Court rejects this argument because it ignores the fact that the Southwestern willow flycatcher, like all of the 28 wetland species, is “associated with or dependent upon” wetlands, and therefore, is protected by Condition I regardless of where the bird is found or how far it travels. The Builder Intervenors also argue that FWS has conflated the terms of the CWA with the ESA. The Court disagrees. The Federal Defendants have simply recognized that this lawsuit concerns only the seven vernal pool species (which were thought to reside in “wetlands” as the ACOE had broadly construed its jurisdiction), and that Plaintiffs have not challenged the ITP take authority for other wetland species or non-wetland species. Finally, the Builder Intervenors argue that rules of contract interpretation apply and that the parties who participated in the MSCP planning process did not anticipate Condition I. They relied on the Assurances to protect them against additional regulatory procedures, and they were taken by surprise when the provision was added at the end of the process. The Court rejects this argument because the parties’ intentions or expectations are not the issue. Rather, the legal question presented is whether FWS violated the ESA or acted arbitrarily when it imposed Condition I on the City’s ITP. It did not. Tennessee Valley, 437 U.S. at 174, 98 S.Ct. 2279 (the ESA is “abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities”). There is nothing remotely unfair or arbitrary about the requirement. The ACOE did not participate in the MSCP planning process. AR 26562. In the second cause of action, the Builder Intervenors maintain that FWS was “required” to issue an ITP that corresponded exactly to the take proposed and described in the City’s HCP. Cross Compl. ¶ 40. They rely on the statutory language that if FWS finds that the HCP meets the requirements for species protection, and if the proposed impact will not threaten the continued survival of the species, then FWS “shall” issue a § 10 permit. § 1539(a)(2)(B); Firebaugh Canal v. United States, 203 F.3d 568, 573-74 (9th Cir. 2000). The Court rejects this argument. The Builder Intervenors characterize FWS’s duty as a ministerial task. In their view, FWS’s § 10 findings are somehow divorced from an independent review of the merits of the applicant’s HCP. E.g., Builder Intervenors’ Opp’n to Fed. Defs.’ Mot. to Dismiss at 8. This construction violates the ESA by eliminating FWS’s duty to use its expertise to restrict the impact of the proposed project on the listed species. It would extinguish the agency’s statutory authority to impose conditions, here conditions F and I, to the permit. The ESA plainly states that any “[t]he permit shall contain such terms and conditions as the Secretary deems necessary or appropriate to carry out the purposes of [§ 10 ITP process].” § 1539(a)(2)(B). No one is entitled to take authorization. The application for a permit does not define the ITP; instead the ESA states that the application identifies “such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.” Id. § 1539(a)(2)(iv). The ITP does not need to be “in accordance” with the HOP; rather the reverse is true and FWS determines the terms and conditions under which the applicant obtains an exception to the ESA § 9 take prohibition. Cf. Bennett v. Spear, 520 U.S. 154, 172-73, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (when ESA mandates an action, the Secretary must use his expert discretion to apply the relevant factors and follow the required procedures). Because the second claim for relief fails, it follows that the Builder Intervenors are not entitled to the injunction they request in the third cause of action. Cross Compl. at 16, ¶ 3. 3. FWS’s Recovery Plan for Vernal Pools of Southern California Plaintiffs allege that FWS has violated its own regulation by failing to re-initiate consultation on the City’s July 1997 ITP once FWS completed the recovery plan for vernal pool species in September 1998. TAC ¶ 88-93; AR 32610-765 (Fed. Defs.’ Ex. M) (hereinafter “Vernal Pool Recovery Plan”). The Court is troubled that FWS is significantly behind schedule with the completion of the recovery plans. The statutory scheme contemplates orderly and timely progression of action to list the species; designate its critical habitat; and create a recovery plan. § 1533; NRDC v. United States Dep’t of Interior, 113 F.3d 1121, 1125-26 (9th Cir.1997); Oregon Natural, 6 F.Supp.2d at 1152 (“The ESA contains very strict and nondiscretionary timelines”). If timely completed, FWS would use the recovery plan to evaluate the sufficiency of the application for an ITP, particularly when the permit governs a large region for an extensive period of time. Cf. National Wildlife v. Babbitt, 128 F.Supp.2d at 1283 (Natomas Basin HCP included provision for incorporating the recovery plan for the endangered snake when it was developed and approved). If the terms of the ITP were inconsistent with the strategies and objectives in the recovery plan, then FWS would need to explain why it reached inconsistent conclusions from the same evidence. Defenders of Wildlife, 420 F.3d at 959; National Wildlife Fed’n v. National Marine Fisheries Serv., 422 F.3d 782, 799 (9th Cir.2005) (deference is not owed when agency fails to adhere to a consistent view). The Vernal Pool Recovery Plan is pertinent evidence of the measures necessary to prevent the extinction of the vernal pool species. The language and structure of the ESA’s provisions for recovery plans shows that FWS must make a conscientious and educated effort to implement the plans for the recovery of the species. § 1533(f)(1) (“The Secretary shall develop and implement” recovery plans for the “conservation and recovery” of the listed species unless “such a plan will not promote the conservation of the species.”). The statute gives the Secretary leeway by including the phrase “to the maximum extent practicable.” § 1533(f)(1)(B). Accordingly, during the re-initiation process ordered by this Court in response to the SWANCC decision, FWS must consider the standards and other information in its Vernal Pool Recovery Plan to evaluate the effect of the City’s ITP on the vernal pool species and whether the mitigation is adequate. B. FWS Failed to Consider the Issue of “Unnatural” Vernal Pool Habitat In rare instances, vernal pool species have been found in “unnatural” areas, for example, in a rut left by a tire track, a roadside ditch, or a cattle stockpond. The biological explanation for these “unnatural” occurrences is that the area was once a healthy vernal pool complex, but over time, it was degraded by human activity (such as off-road vehicle use or scraping for construction) to the point of virtual destruction. AR 32465-67; 63 Fed.Reg. at 54975; 59 Fed.Reg. 64812, 64814; see 62 Fed.Reg. at 4926 (alternatively, the fairy shrimp eggs may be distributed by birds, or nearby habitat may be washed into an adjacent area during heavy rains). Over time, if that area is left relatively undisturbed and rains fill these “man-made” depressions with fresh water, then the species may re-vitalize, for example, some fairy shrimps’ eggs may have survived a few years in their dormant state in those damaged soils. 62 Fed.Reg. at 4926, 4930; AR 32466-67. While the parties refer to these instances as being “unnatural,” it is more accurate to describe them as “survivors” of a degraded habitat. The City’s conservation plans distinguish between “naturally occurring” vernal pools, and “road rut” vernal pools; and also provides greater protection to vernal pools within the Preserve boundaries than those located outside the Preserve. “Outside the MHPA, narrow endemic species [including four vernal pool plant species] will be protected through the following measures, as deemed appropriate: 1) avoidance; 2) management; 3) enhancement; and/or 4) transplantation to areas identified for preservation.” AR 24955. According to the Federal Defendants, the only vernal pools affected by this sentence are those unnaturally occurring in road ruts, tire tracks, or water ponds. The Federal Defendants characterize the amount of take authorized by this sentence as “largely theoretical” or “negligible.” E.g., Fed. Defs.’ Cross Mot. Summ. J. Br. at 1, 3,14-16, 23, 34, 38. Plaintiffs argue that FWS did not analyze the impact of the taking of these “unnatural” instances of vernal pool species. “FWS simply ignored this issue altogether.” Pis.’ Br. at 41. The Court agrees. A decision is arbitrary if the agency “entirely failed to consider an important aspect of the problem.” Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856. FWS authorized the take of vernal pool species when found in these “unnatural” locations in Condition I by authorizing the City to take vernal pool species “outside” of “jurisdictional wetlands.” But there is no discussion or evaluation of the impact of the adverse effects on those rare instances in the context of the survival of the species as a whole. It appears, that as a matter of convenience, FWS concluded that these errant locations of species or habitat would not constitute wetlands, even under the ACOE’s definition that its CWA jurisdiction encompassed isolated bodies of water. Yet the record contains no discussion of the reason for this distinction for purposes of enforcing the ESA. It is arbitrary to distinguish between vernal pools within or outside the ACOE’s wetlands jurisdiction as a basis for providing different levels of protection for the endangered species that may inhabit or rely upon those bodies of water. Similarly, the Court finds that the agency has not adequately explained its decision and has not based its decision on facts in the record. Citizens to Preserve, 401 U.S. at 415, 91 S.Ct. 814. The record shows that, against all odds, vernal pools can sometimes survive on a damaged location, and the dormant cysts of the fairy shrimp may hatch several years later. Given the exceptionally small number of vernal pool species that may still be viable in San Diego, it defies reason to give less protection to those creatures and plants that have survived some measure of damage by human activity, as these would appear to be among the more hearty specimens. A “road rut” vernal pool has most likely been damaged in violation of the strict ESA take prohibition but have survived that disruption. It is arbitrary to assume that surviving vernal pools need less protection than those that exist in relatively pristine and less developed settings. FWS has the statutory duty to protect the threatened and endangered vernal pool species that now reside in those degraded habitat areas. Despite the prior harm, these vernal pools have regained their capacity to sustain life. Yet FWS gives these hearty, surviving species less protection that other vernal pools simply because those pools were considered to be within the jurisdiction of the CWA. C. The Assurances Violate the ESA by Locking in Inadequate, Unproven, and Uncertain Mitigation Measures for the Seven Vernal Pool Species The next issue concerns the operation of the “Assurances” on the seven vernal pool species in light of FWS’s decision to defer analysis of the direct and indirect impacts of development under the MSCP until future § 7 consultations with the ACOE. The Assurances prohibit FWS from imposing additional conservation measures beyond those measures contained in the City’s HCP during the fifty-year life of the ITP. FWS will not require additional land, land restrictions, money, conservation measures, or mitigation from the City or a developer (by virtue of their Third Party Beneficiary status). AR 26555-56 (IA § 9.4, 9.5). FWS agreed to step in to fill any void to bear the financial burden because it expected that the likelihood of such an event would be “small.” AR 26933 (Findings); see also AR 26200, 26210 (BiOp states that FWS will “request and receive” funding “needed to assure adequate conservation of covered species in perpetuity”). The structural problem is FWS did not evaluate the impact of the conservation plan, such as the design of the Preserve or the methods and measures of mitigation, as applied to the vernal pool species at the initial stage of issuing the ITP because it did not anticipate any take under Condition I; yet, FWS promised that when a particular project is reviewed in the future, FWS will only enforce the mitigation measures that are in that unexamined HCP. The Court agrees with Plaintiffs’ characterization of the structure of the Assurances on the facts of this case as creating a “shell game” in which FWS effectively eliminates the ESA protections for vernal pools by promising to protect them in the future at the same time it restricts its authority to those unevaluated measures set forth in the MSCP and Subarea Plan. At the time of issuing the ITP, FWS assumed it need not evaluate the extent of the possible impact or the level of mitigation because in the future FWS would have considered if a particular project would jeopardize the vernal pool species in conjunction with the CWA permit process. E.g., AR 26285-88 (direct impacts for all seven vernal pool species “will be addressed” in future analyses); cf. AR 24146-47 (in early draft, FWS believed it had retained right to impose additional mitigation measures during future § 404 proceedings with ACOE). Pursuant to Condition I, FWS would consult with the ACOE to address specific species needs on specific development projects. But the record shows that the future proceedings would be empty because FWS gave away its power to protect the species in the Assurances. If FWS found that a specific development project would impair the recovery of a vernal pool species, and recommended modifications to the planned development to prevent that harm, the developer has no obligation to provide any of those mitigation measures. AR 26561-61 (IA § 9.8A). FWS would be talking into the wind because the developer, protected by the City’s authority to issue an ITP for that project, is assured that it does not have to provide those additional measures. Even putting aside the fact that SWANCC has eliminated the procedure of turning to the ACOE for a wetland permit that would trigger a future § 7 ESA con-sulfation with FWS, the structure of this agency action is fundamentally flawed when applied to the vernal pool species. The egregious flaw remains because FWS has not analyzed the impact of the City’s development plans on the vernal pool species (because it planned to undertake that evaluation in conjunction with the § 7 consultation proceedings with the ACOE CWA permit process), yet it has locked in the level and extent of mitigation. The MSCP is structured to create a Preserve, which eventually may contain 847 acres of the remaining vernal pool habitat, but allows the City to authorize virtually unfettered development on the 336 acres located outside the Preserve. (The regulated destruction outside the Preserve would be mitigated by remedial actions to vernal pools within the Preserve). Notably, FWS has not evaluated the design of the permanent Preserve to determine if it would mitigate the expected harm to the vernal pool species outside the Preserve. There is no indication that the acres selected for preservation are occupied by viable populations of fairy shrimp. Thus, the basis for granting the Assurances is devoid of any evaluation of the impact, but by the time FWS intends to evaluate that site-specific impact, it will have no ability to suggest or impose any additional measures. The AR bears out Plaintiffs’ assertion of how the implementation of the conservation plan and FWS’s supervision of the mitigation efforts will operate because both the standard to “avoid” and the type of mitigation are flawed. First, the duty to “avoid” vernal pools is toothless. The Federal Defendants and Builder Interve-nors insist that the Plaintiffs’ position lacks merit because of the significant protections in the City’s conservation plan to “avoid” vernal pool habitat. They cite the standard in the MSCP and Subarea plan to “avoid” vernal pools whether located in or outside of the planned Preserve; the adoption of the CWA’s “no net loss” policy; and the City’s Environmentally Sensitive Lands Ordinance (“ESLO”). E.g., AR 23721 (“avoidance of impacts ... to the maximum extent feasible”), 24955 (Subarea Plan stated that vernal pools in naturally occurring complexes inside the Preserve “will be avoided”; vernal pools within and outside the Preserve will be avoided “to maximum extent practicable”); AR 25724-GO (ESLO); accord AR 19352, 22446, 23340-41 (draft EIS), 23966-68, 25227, 26912, 26914 (FWS Findings relies on directive to “avoid” impacts “where possible” and to mitigate “unavoidable” impacts “to the maximum extent practicable”), 26271, 26284-88 (same in BiOp), 26571(IA), 39523 (MSCP § 3.3.3). The Court has examined each of these provisions and finds them utterly otiose. Each avoidance standard allows the City or developer to unilaterally détermine that a particular development project cannot avoid the vernal pools on the proposed construction site. Both the City and developers have a strong financial interest in obtaining the highest financial return on expensive real estate, and neither has the expertise or incentive to contemplate the ESA protections. By sim-pie ipse dixit, the City or developer can proclaim that avoidance of the vernal pools is not possible on the site, and thus shift their attention to providing the mitigation outlined in the MSCP. The “no net loss” standard illustrates the flaccidity of the avoidance standard in the HCP. See infra pp. 1149 -1151 & nn. 19 & 20. The uncontradicted evidence in the record confirms that the “no net loss” standard is inadequate to protect the vernal pool species. FWS determined that these seven fragile species required the procedural and substantive protections of the ESA because, in part, the CWA was not preventing harm. The HCP defines a “no net loss” of functions and values standard with a broad practicality exception. Here, the “no net loss” policy permits the substitution of off-site mitigation whenever on-site mitigation is “impracticable.” Nothing suggests that merely drafting a development plan that envisions using the entire plot could render on-site mitigation “impracticable.” E.g., AR 30094 (Cousins resulted in 100% loss of vernal pools on the 67-acre site). Unlike the ESA, which broadly prohibits harm “in the broadest possible manner to include every conceivable way in which a person can ‘take’ ” a species, Forest Conservation, 50 F.3d at 784, the “no net loss” policy would permit such harm as long as another, comparable body of water is restored. Similarly, the City’s ESLO favors development. The Ordinance states simply that “impacts to wetlands should be avoided.” AR 25730. The term is not defined and merely offers a suggestion that development “should” avoid the vernal pools. “Examples of unavoidable impacts include those necessary to allow reasonable use of a parcel entirely constrained by wetlands,” AR 25731, 23351-52, thereby allowing development of a large complex of interrelated vernal pools when that provides the healthiest environment for these species. The ESLO allows the developer to define the scope of what can be “avoided,” thus, the inclusion of upland watershed is equally ineffectual. If you can’t “avoid” a vernal pool, it is irrelevant that a developer should have “avoided” the watershed acreage that supported that habitat. These passing, undefined references to “avoidance” do not satisfy the ESA, which affords imperiled species the “highest of priorities.” Tennessee Valley, 437 U.S. at 174, 98 S.Ct. 2279. The weakness of the obligation to “avoid” vernal pools is then purportedly recompensed, but in fact, the approved mitigation measures are uncertain and inadequate. National Wildlife Fed’n v. National Marine Fisheries Serv., 254 F.Supp.2d 1196, 1214 (D.Or.2003) (a properly supported BiOp cannot rely on mitigation that is not reasonably certain to occur). The Federal Defendants and Builder Intervenors stress that when vernal pool habitat is destroyed, the MSCP imposes significant mitigation responsibilities. The problem with the proposed mitigation for the two fairy shrimp, however, is that they either have been proven to be ineffective or they are untested experiments. The City’s conservation plans concentrate on collecting species from the site of the development and transplanting them to a site within the Preserve, e.g., AR 19627-28, 19678, 24859-60, 24909, but the record establishes that fairy shrimp cannot be successfully transplanted, and, even if successful, it risks hybridization with other species of fairy shrimp. FWS reached that conclusion in February 1997, just a few months before it approved the proposed mitigation method in the MSCP. 62 Fed.Reg. at 4926, 4931 (no scientific data on method of inoculating an existing pool with a known quantity of eggs in face of threat of hybridization, damage to eggs during collection, storage, and transportation; efforts to restore this fragile habitat can fail when the depth of the pool is altered or the pool is modified to hold water for an inappropriate length of time). The City’s ESLO states that “creation” is an acceptable type of mitigation, e.g., AR 25747, yet FWS has completely rejected that method as ineffective. See also Cousins’ Opp. to TRO at 3-4 (ACOE approved mitigation package that included “creation” of vernal pool basins and relocation of fairy shrimp eggs). Because FWS is bound by the Assurances not to require additional mitigation measures— even if over time, biologists learn new and better ways to protect the species or conversely, if time shows certain restoration methods fail — FWS would not be able to require the developer