Full opinion text
MEMORANDUM DECISION AND ORDER MIKEL H. WILLIAMS, United States Magistrate Judge. Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra Club, and Defenders of Wildlife (“Plaintiffs”) challenge the decision of the U.S. Forest Service (“Forest Service”) and the Bureau of Land Management (“BLM”) (collectively, the “Agencies” or “Federal Defendants”) to allow expansion of the J.R. Simplot’s (“Simplot”) Smoky Canyon Mine (the “Mine”) into two new panels that have not been previously subject to phosphate mining. Pending before the Court are Plaintiffs’ Motion for Summary Judgment (Docket No. 156), Simplot’s Cross Motion for Summary Judgment (Docket No. 173), and the Federal Defendants’ Cross Motion for Summary Judgment (Docket No. 183). Because review of agency actions is limited to the administrative record without triable facts, summary judgment may be granted to either party based on a review of that record. Having carefully reviewed the record and having considered the briefing and oral arguments of all parties, the Court enters the following Order denying Plaintiffs’ motion and granting Simplot’s and the Federal Defendants’ motions for the reasons set forth below. PROCEDURAL BACKGROUND As more thoroughly discussed in a prior Order (Docket No. 104), Plaintiffs brought this action against the Federal Defendants challenging their decision approving the Mine expansion and claiming that the expansion will result in irreparable harm to the environment and will adversely impact their members’ enjoyment of recreational, aesthetic, and conservation interests within the Caribou-Targhee National Forest (the “Forest”). The Court granted Simplot, various Idaho and Wyoming cities and counties, United Steelworkers Local 632, and the Idaho Farm Bureau Association intervenor status. See Orders (Docket Nos. 82 and 97). On September 22, 2008, Plaintiffs filed a motion for a preliminary injunction on their claims under the Clean Water Act, National Forest Management Act, and the National Environmental Policy Act. Plaintiffs argued that the Agencies had failed to adequately address the selenium contamination that could occur if the Mine expanded. After extensive briefing and oral argument, the Court denied Plaintiffs’ motion finding that Plaintiffs had neither demonstrated a likelihood of success on the merits of their claims nor demonstrated a likelihood of irreparable harm or that the balance of harms tipped in their favor. See Order (Docket No. 104). Plaintiffs appealed the Court’s decision to the Ninth Circuit Court of Appeals and also filed a Motion for Preliminary Injunction Pending Appeal (Docket No. 106) which the Court denied. See Order (Docket No. 120). The Ninth Circuit likewise denied Plaintiffs’ motion for preliminary injunction pending appeal. See USCA Order (Docket No. 124). On April 10, 2009, 323 Fed.Appx. 512 (9th Cir.2009), the Ninth Circuit issued a Memorandum decision finding no abuse of discretion in the Court’s preliminary conelusion that Plaintiffs were not likely to succeed on the merits of their claims and that Plaintiffs had not established a likelihood of irreparable harm due to potential selenium contamination. See USCA Mem. (Docket No. 129). However, the Ninth Circuit also found that the Court failed to consider the harm caused by Simplot’s preparatory expansion activities when reaching a decision on the irreparable harm analysis. Accordingly, the Ninth Circuit vacated the Court’s Order and remanded the case for consideration of the effect of the preparatory activities. In doing so, it issued a temporary stay until the Court had an opportunity to re-analyze the irreparable harm issue. On May 13, 2009, the Court entered an Order lifting the temporary stay allowing the preparatory work to proceed. (Docket No. 160.) On June 4, 2009, the Ninth Circuit denied a second emergency motion for injunction pending appeal of the Court’s order lifting the stay. See USCA Order (Docket No. 170). On July 24, 2009, the Court heard argument on the pending summary judgment motions. On July 25, 2009, the Court conducted a 6-hour site visit of the Smoky Canyon Mine. The Court was accompanied by counsel and a party representative for each of the parties. The Court viewed panels that have been previously mined for phosphate and since reclaimed, the Pole Canyon remediation area, the panels subject to current mining activities, current site preparation and mining on Panel F, and the undisturbed area of the Forest where Panel G will be developed. The Court also viewed the method being used to divert water from various panels. Finally, the Court viewed South Fork Sage Creek and Hoopes Springs. With the concurrence of counsel, photographs were taken at various locations during the site visit. These photographs and comments by the Court as to its observations at these various locations will be filed as a Court exhibit within ten (10) days from the date of this Order. BACKGROUND OF PHOSPHATE MINING In its Order denying Plaintiffs’ preliminary injunction motion, the Court reviewed the history of phosphate mining in southeastern Idaho in general and the history of Simplot’s mining endeavors in particular. The Court believes this background is important when reviewing the merits of the claims, and will again revisit that information to place the decision in context. A. History of Phosphate Mining In the 1870s, prospectors staked mining claims in southeastern Idaho and dug numerous pits and tunnels searching for copper, gold, or silver. At times, this prospecting activity occurred in areas containing phosphate rock. In the early 1900s, various individuals and groups started to recognize the potential value of some of these old mining claims, not for gold or silver, but for phosphate which could be used to produce fertilizer. In 1908 and 1909, pursuant to a number of Secretarial Orders, the Secretary of the Interior withdrew from entry over 5 million acres of public lands in the West containing phosphate. Almost half of those lands were later restored. In 1910, President Taft signed into effect the Pickett Act which gave the executive branch the power to withdraw public lands to protect phosphate reserves from foreign acquisition and to ensure that the United States would not be dependent on European countries for phosphate. Under the Act, the government withdrew approximately 2,500,000 acres in Idaho, Wyoming, and Utah that had formerly been temporarily withdrawn by the Secretary of Interior and designated them as the Western Phosphate Reserve. Litigation in the courts and Congress’ efforts to establish a method of patenting phosphate claims over the next few years culminated in the passage of the Mineral Leasing Act (“MLA”) in 1920. Under the MLA, phosphate was removed from the jurisdiction of the Mining Act of 1872, and a royalty system was established to provide income to the federal government. Since the enactment of the MLA, access to the phosphate reserves is available only through a competitive leasing process. The United States designated certain Known Phosphate Lease Areas (“KPLA”) in the Caribou-Targhee National Forest which are subject to that leasing process. Pursuant to the MLA, the BLM administers 84 phosphate mineral leases on 46,-000 acres of land in southeastern Idaho, some of which are held by Simplot. The BLM cooperates with the Forest Service, Idaho Department of Environmental Quality (“IDEQ”), and other state and federal agencies in evaluating and mitigating any adverse environmental consequences of phosphate mining. B. Selenium Contamination Phosphate is mined from open pits. First, dirt, rock, and other material are removed from the site to expose the phosphate ore. This material is otherwise known as overburden. When a pit is mined out, it is backfilled with the overburden and reclaimed. Excess overburden is disposed of in sites adjacent to the mine pits and also reclaimed. Prior reclamation practices called for planting new vegetation directly on the overburden. Phosphate in the southeastern Idaho area contains selenium which in small quantities is a necessary nutrient in plant and animal life. A problem arises, however, when the overburden from phosphate mining is exposed to the elements causing the selenium to concentrate and become toxic. Precipitation falling on the seleniferous waste causes infiltration into the groundwater or runoff into the ground or nearby streams. In 1996, toxic amounts of selenium were discovered in some of the waters in southeastern Idaho, near the phosphate mines, after numerous livestock deaths occurred and abnormalities in aquatic life were noted. The source of the selenium contamination was determined to be water percolating through the mines’ overburden into the groundwater, draining into surface water, or being absorbed by vegetation. Animals ingesting vegetation growing out of the overburden areas or being irrigated by contaminated water necessarily ingested concentrated amounts of selenium. These incidents occurred in a separate drainage from the one in which Simplot’s Mine is located. FEIS 2-17; 5-26. Once the selenium problem was discovered, five phosphate mining companies in southeastern Idaho, including Simplot, formed an ad hoc committee of the Idaho Mining Association and collaborated with representatives from various state and federal agencies to form the Selenium Working Group to identify the sources of the selenium contamination and to work towards mitigation of past selenium contamination and prevention of future selenium contamination. In 2000, a Memorandum of Understanding concerning Contamination from Phosphate Mining Operations in Southeastern Idaho (“MOU”) was entered into by federal regulatory agencies (USFS, BLM, EPA, USFWS, and BIA), the IDEQ, and the Shoshone-Bannoek Tribes. The MOU placed control of addressing the selenium problem on the regulatory agencies under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The mining companies agreed with this change in management and entered into an enforceable Area-wide Consent Order and Administrative Order on Consent (CO/AOC). Site specific investigations by the appropriate lead agency as set forth in the MOU were to follow. Towards that end, in 2003, Simplot entered into a CERCLA Administrative Order of Consent to conduct a Site Investigation (“SI”) and Engineering Evaluation/Cost Analysis (“EE/CA”) pertaining to Smoky Canyon Mine. Barker Dec. Ex. G. (Docket No. 60-8). Numerous studies, site investigations, and evaluations followed, including geochemistry studies; groundwater and surface water resource studies; wildlife surveys; wetlands field investigations; geological explorations; vegetation surveys; soil inventories; cultural resource surveys; fisheries/aquatic resource sampling; and over 30 agency field visits exclusive of visits by agency personnel, non-government organizations, and interested citizens. Declaration of Lori Hamann (“Hamann Dec.”) (Docket No. 58). C. Simplot’s Mining Operation Pursuant to the MLA, Simplot leases Caribou National Forest KPLA land on which its Smoky Canyon Mine (the “Mine”) is located. The Mine is ten miles west of Afton, Wyoming, and 110 miles south of Yellowstone National Park. Simplot commenced this phosphate mining operation in 1983. It consists of several sections known as Panels A, B, C, D, and E, the mining of which was authorized by the Forest Service and BLM at various times from 1982 through 2002. After the phosphate is mined, the ore is converted on site into a liquid slurry which is transported through a buried pipeline to Simplot’s Don Fertilizer Plant (“Don Plant” or “Plant”) near Pocatello, Idaho, a distance of over 80 miles, where it is processed into fertilizer. The Mine has been the sole supplier of phosphate to the Don Plant since Simplot developed the pipeline system and discontinued dry handling of phosphate ore in the 1990s. Declaration of William J. Whitacre ¶ 4 (“Whitacre Dec. ”) (Docket No. 12); Declaration of Martin Hunt ¶ 9 (Docket No. 85). At that time, Simplot “retired and abandoned any facilities to transport, receive or utilize non-slurried ore at the Don Plant.” Whit-acre Dec. ¶ 4. In April 2003, having exhausted supplies of phosphate in all but one of its previously approved panels, Simplot submitted a Mining and Reclamation Plan (“Mining Plan”) to the Agencies seeking authorization to expand its mining operations into adjacent Panel F, initially leased in 2001, and Panel G, initially leased in 1951, to ensure an uninterrupted supply of phosphate for the Don Plant. Without expansion, the Mine ■will have exhausted its existing reserves by mid-summer of 2010. Declaration of Dennis L. Facer {“Facer Dec. ”) ¶ 3 (Docket No. 11). In order to limit selenium contamination, the Mining Plan proposed that the Mine’s overburden would be covered with a cover of chert and topsoil. FEIS 2-49. Simplot submitted that the cover would store and remove precipitation from the overburden piles through runoff, evaporation, and plant transpiration, thereby preventing potentially dangerous levels of selenium from percolating through the overburden to the groundwater and then into surface water. D. Agencies’ Action In September 2003, in response to Simplot’s proposed Mining Plan, the Forest Service and BLM issued a scoping letter regarding the need for an environmental impact statement for Smoky Canyon Mine Panels F and G. The scoping letter was followed by two public meetings. Two years later, in December 2005, the Agencies issued for comment a draft environmental impact statement (“DEIS”) which discussed several alternatives. Two of those alternatives are relevant here. Alternative D, which was rejected, proposed a 12-inch thick compacted Dinwoody shale infiltration barrier covered by chert and topsoil. The proposed barrier was to be a series of overlapping “shingles” composed of Dinwoody material that would keep moisture out of the reclaimed pit. The DEIS recommended Alternative B. That alternative “would have eliminated all selenium overburden fills external to the pit boundaries.” FEIS 2-107. As more thoroughly described below, Simplot thereafter went through a significant amount of study and refinement of its cover design. Two years later, on October 26, 2007, the final environmental impact statement (“FEIS”) was made available for public review and comment. The FEIS adopted a variation of Alternative D, which would use topsoil, Dinwoody material, and chert for maximum moisture storage and subsequent removal of moisture by evapotranspiration instead of the shingle-type infiltration barrier addressed in the DEIS. FEIS 2-49. As stated in the FEIS, “A store and release cover limits net percolation of moisture into underlying materials, not with a low permeability infiltration barrier but by maximizing soil moisture storage for the subsequent removal by evapotranspiration. Evapotranspiration is the sum of evaporation and plant transpiration.” Id. In effect, the FEIS chose a modification of the previously rejected Alternative D as the preferred alternative for the Mine expansion after concluding, based on computer modeling and other studies, that the new cover design would result in selenium levels well below the Idaho water quality standard. The Agencies received and considered additional comments on the FEIS from interested parties, including Plaintiffs. On June 6, 2008, the Agencies issued their respective Records of Decision (“RODs”) approving the Mine expansion into Panel F and Panel G. Plaintiffs, who had commented throughout the approval process, appealed the Forest Service ROD. The appeal was denied on September 25, 2008. There was no procedure for administratively appealing the BLM ROD. After providing the Forest Service and BLM a 60-days’ notice of intent to sue under the Clean Water Act, Plaintiffs filed this action seeking declaratory and injunctive relief. STANDARD OF REVIEW A. Standard of Review under the APA Challenges to agency actions are reviewed under the deferential standard of the Administrative Procedure Act (“APA”). Tucson Herpetological Soc. v. Salazar, 566 F.3d 870, 875 (9th Cir.2009). This narrow APA standard dictates that a reviewing court may set aside an agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. (citing 5 U.S.C. § 706(2)(A)). See also Siskiyou Regional Educ. Project v. U.S. Forest Service, 565 F.3d 545 (9th Cir.2009) (NFMA); North Idaho Community Action Network v. U.S. Dept. of Transportation, 545 F.3d 1147 (9th Cir.2008) (NEPA); Lands Council v. McNair, 537 F.3d 981, 987 (NEPA and NFMA); Swanson v. U.S. Forest Service, 87 F.3d 339, 345 (9th Cir.1996)(CWA). A court should “reverse a decision as arbitrary or capricious only if the agency relied on factors Congress did not intend it to consider, ‘entirely failed to consider an important aspect of the problem,’ or offered an explanation ‘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.’ ” McNair, 537 F.3d at 987 (citation omitted). Although the standard of review under the APA is narrow, a court must engage in a “substantial inquiry” and “a thorough, probing, in-depth review,” while “the agency must present a rational connection between the facts found and the conclusions made.” Siskiyou, 565 F.3d at 554 (internal quotations and citations omitted). Except in limited circumstances, judicial review is limited to review of the administrative record underlying the challenged decision. Thompson v. Dept. of Labor, 885 F.2d 551, 555 (9th Cir.1989). The administrative record “ ‘consists of all documents and materials directly or indirectly considered by the agency decision-makers and includes evidence contrary to the agency’s position.’ ” Id. (quoting Exxon Corp. v. Dept. of Energy, 91 F.R.D. 26, 32 (N.D.Tex.1981)) (emphasis in original). Judicial review should be focused on the record in existence at the time of the agency’s decision. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.2000) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996); Thompson, 885 F.2d at 556. In determining whether an agency action is arbitrary and capricious, the court must not assume the role of a scientist and need not agree with the agency’s decision. McNair, 537 F.3d. at 988. Rather, agencies have the discretion to rely on its own experts’ reasonable opinions to resolve a conflict between or among specialists. Id. at 1000 (citing Marsh v. Oregon Nat. Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). GOVERNING STATUTORY PROVISIONS A.Clean Water Act (“CWA”) The stated purpose of the Clean Water Act (33 U.S.C. §§ 1251 to 1376) is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Under the Act, federal agencies have a duty to ensure that activities carried out on federal land comply with state water quality standards in the same manner and to the same extent as any nongovernmental entity. See 33 U.S.C. § 1323(a). Idaho law authorizes the Idaho Department of Water Quality (“IDEQ”) to promulgate regulations to achieve maintenance of existing beneficial uses of waters. Idaho Code, § 39-3601; § 39-3603. Those regulations appear at Idaho Administrative Code 58.01.02.001, et seq. As relevant here, Idaho law prohibits discharge of pollutants that “[w]ill or can be expected to result in a violation of the water quality standards applicable to the receiving water body or downstream waters; or ... [w]ill injure designated or existing beneficial uses----” Idaho Admin. Code r. 58.01.02.080.01. Finally, for waters that are listed as impaired pursuant to § 303(d), Idaho law requires that any activity be restricted “as necessary to prohibit further impairment of ... designated or existing beneficial uses.” Idaho Admin. Code r. 58.01.02.054.05. B.National Forest Management Act (“NFMA”) For each unit in the National Forest System, NFMA requires the Forest Service to develop comprehensive management plans with which any subsequent “plans, permits, contracts, and other instruments for the use and occupancy” must be consistent. Earth Island Institute v. U.S. Forest Service, 351 F.3d 1291, 1300 (9th Cir.2003) (citing 16 U.S.C. §§ 1604(a) and (i)). As explained by the Ninth Circuit: The NFMA sets forth the statutory framework and specifies the procedural and substantive requirements under which the Forest Service is to manage National Forest System lands. Proeedurally, the NFMA requires the Forest Service to develop a forest plan for each unit of the National Forest System. 16 U.S.C. § 1604(a). In developing and maintaining each plan, the Forest Service is required to use “a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences.” Id. § 1604(b). After a forest plan is developed, all subsequent agency action, including site-specific plans ... must comply with the NFMA and be consistent with the governing forest plan. Id. § 1604®. McNair, 537 F.3d at 988-89. C.Mineral Leasing Act (“MLA”) As relevant here, the Mineral Leasing Act governs the form and manner of disposition of national forest land containing phosphate deposits. See 30 U.S.C. § 181, et seq. The MLA authorizes the Secretary of the Interior to issue leases for the exploration, development, and utilization of mineral deposits subject to rules and regulations promulgated by the Secretary. 30 U.S.C. § 192c. With respect to known phosphate deposits in particular, the Secretary of the Interior may lease phosphate deposits and lands containing such deposits through a competitive leasing process. 30 U.S.C. § 211(a). With respect to areas in which the existence or workability of phosphate deposits is unknown, the Secretary of the Interior may issue a prospecting permit. 30 U.S.C. § 211(b). The Secretary has promulgated regulations regarding mineral leasing and permitting. See 43 C.F.R. §§ 3500.0, et seq. D. NEPA NEPA requires agencies to have available and carefully consider “ ‘detailed information concerning significant environmental impacts’ and make that information available to the public.” North Idaho Community Action Network v. United States Department of Transportation, 545 F.3d 1147, 1153 (9th Cir.2008) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Stated another way, NEPA requires a federal agency to “ ‘consider every significant aspect of the environmental impact of a proposed action ... [and] inform the public that it has indeed considered environmental concerns in its decisionmaking process’ ... In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences.” Earth Island Institute v. U.S. Forest Service, 351 F.3d 1291, 1300 (9th Cir.2003) (internal citations omitted). NEPA “exists to ensure a process” as opposed to imposing substantive requirements on federal agencies. McNair, 537 F.3d at 1000 (citation omitted). DISCUSSION A. Clean Water Act Plaintiffs contend that the Agencies violated the Clean Water by arbitrarily relying on Simplot’s store and release cover and on the anticipated success of the Pole Canyon remediation and the Panel E reclamation in reducing existing selenium levels. They also contend that the Agencies erred in finding that the Mine expansion would not further impair the § 303(d) listed streams in the area of the Mine and that the selenium level in the unimpaired surface and groundwater would remain within Idaho’s water quality standards. Plaintiffs also argue that the Agencies acted illegally in not requiring that Simplot obtain a Section 401 permit under the Clean Water Act. See 33 U.S.C. § 1341(a)(1). This section requires a water quality certification from a state before a federal license or permit can be issued for activities that may result in any discharge into navigable waters. The Court previously addressed the cover design and planned remediation issues in its decision denying Plaintiffs’ preliminary injunction motion and determined that Plaintiffs had demonstrated little likelihood of success. A further review of the parties’ positions following briefing and oral argument on the merits reinforces that decision. 1. Store and Release Cover Design The crux of Plaintiffs’ argument regarding the store and release cover design is that the Agencies ignored the concerns of Dr. Christopher Carlson (“Carlson”), the Forest Service’s National Ground Water Program Leader, regarding the ability of the cover design to prevent selenium contamination at the Smoky Canyon Mine. Those concerns included what Carlson characterized as numerous “short cuts” and “shortcomings” and an evaluation that ignored seasonal variations in assessing the cover’s ability to store and release precipitation. Carlson believed it would have taken only an additional four working days to run the model to produce the information he felt would have demonstrated the cover’s ability or inability to accommodate seasonal surges of precipitation. Plaintiffs conclude that the Agencies’ decision to terminate computer modeling and verify the model’s findings by on-site testing was arbitrary and capricious. Plaintiffs rely primarily on five documents in support of their argument: 1. January 4, 2005 Agency Memo (AR FS 1000158) which contained minutes of a 12-14-04 Panel EIS Conference Call — noting comments held at a then recent Caps and Covers Conference raised doubts about the effectiveness of caps and infiltration barriers in the phosphate mining area of Idaho. 2. October 19, 2006 Carlson Memo (AR FS 000393) in which Carlson expressed concern about perceived failure of the modeling to account for seasonal aspects of the hydrological cycle and the Agencies’ decision not to require an additional four days of modeling to generate monthly rather than yearly outputs. 3. October 26, 2006 Agency Memo (AR BLM 005581) — referencing Carlson’s desire to require the additional four days of modeling. 4. November 13, 2006 Albright Memo (AR FS 00042) — responding to Scott Gerwe’s inquiry about recommended vegetation to be planted on the cover surface, Albright noted that it was a “tough” problem because most of the precipitation “comes when there is little or no evapotranspiration and as snow which melts slowly and creates a lot of infiltration” and noting that they would not be able to build a cover that would limit drainage to zero or near-zero. 5. January 26, 2007 Carlson Memo (AR BLM 005862) — (to Scott Gerwe— Project Manager) sets forth in detail Carlson’s concerns about the cover design in existence at that point, making recommendations for construction and testing. 6. July 7, 2007 Agency Memo (AR BLM 006213) — setting forth recommendations regarding the Forest Service WO Assessment of the Cover System — states reasons for accepting the cover design. Plaintiffs cite it for the reference on page 3 for failure to output monthly values. Reliance on those few documents and the opinion of one individual stands in stark contrast to the thousands of pages of documents in the Administrative Record and the opinions of 24 other members of the interdisciplinary team assembled by the Agencies who commented on and approved the cover design. See AR BLM 06123 and FEIS 6-22 (indicating that Carlson was a member of both the six member technical review team and the 25-member interdisciplinary team assembled by the Agencies). The technical review team consisted of members of the BLM, Forest Service, and the IDEQ. Id. The documentation relied on by Plaintiffs is not persuasive. Simplot observes that the January 2005 Agency Memo was written before any cover design or modeling was done. Furthermore, the Court notes that the cited provision appears to refer to general comments made at a conference addressing no particular design and no particular location. The Court finds that while the comments may serve as an indication of generalized concerns about caps and covers, they are irrelevant to a specific cover designed after months of testing various materials for use on a specific site. The October 26, 2006 Carlson e-mail obviously predated the final cover design which was submitted in May 2007. As discussed in more detail below, most of Carlson’s concerns were addressed in either the final design or by the required Quality Control and Quality Assurance program, the results of which would be supervised and monitored by an independent third-party consultant. The November 13, 2006 Albright Memo contains general comments, based on no specific information, by an individual who was merely asked by Scott Gerwe about the advantages and disadvantages of the use of certain species of vegetation over the cover. The January 26, 2007 Carlson Memo sets forth Carlson’s remaining reservations, concerns, and recommendations. Although somewhat supportive of Plaintiffs’ position, this memorandum shows that Carlson did not ultimately reject or dissent from the cover design. Rather, he suggested tight monitoring and some additional steps, most of which were adopted by the Agencies, to ensure that the cover worked as proposed. Finally, the July 6, 2007 Agency Memo, while noting that there was “some uncertainty within the technical review team about the short-term accuracy of the Va-dose/W model results” caused by the lack of monthly outputs in the computer modeling, ultimately supports the Agencies’ view that it considered Carlson’s comments, yet decided to go ahead with the design based on the detailed reasons in the memorandum. In contrast, the record reflects the extensive testing and analysis of the cover design that was reviewed by the inter-agency technical review team, including: (1) assessment of 225 samples from 52 drill holes in the Panels F and G area to develop geochemistry baseline data, FEIS 3-8; (2) material testing of Dinwoody material, chert, and topsoil to determine the hydrologic properties of each material, FEIS 2-50; AR BLM 45332 at 45693 (Drew Morrison Memorandum, July 12, 2006); (3) collection of climate data from nine sites around Panels F and G to generate a 100-year climate profile for Panel F and G, FEIS 2-51, AR BLM 46320, 46336-38 (Report: One Dimensional Modeling of Soil Cover System Alternatives, Apr. 2006); (4) 1-D VADOSE/W modeling to assess the effect of thirty-three different variables on cover system performance, see FEIS 2-52; (5) 1-D VADOSE/W modeling to assess the vertical performance of the selected Cover System across all 100-years of climate data, FEIS 2-51; (6) small-scale 2-D VADOSE/W modeling to assess the vertical and horizontal performance of the Cover System across a short slope and all 100 years of climate data, FEIS 2-52; AR BLM 45244, 45255-56 (Simplot Feasibility Engineering Report, July 2006); (7) full-scale 2-D VADOSE/W modeling to assess the performance of the Cover System across the entire length of the proposed expansion and twenty years, including the five wettest years in the 100-year period; AR BLM 45244, 45253-45255 (Simplot Feasibility Engineering Report, July 2006); and (8) SEEP/W modeling to assess the rate at which water percolating through the Cover would descend through overburden and the 200 to 750 feet of undisturbed material beneath the overburden and enter groundwater, FEIS 4-34; AR BLM 45332 at 45705 (Report: Predicted Seepage Rates into Aquifer Beneath Backfilled Panels for 100-Year Period (O’Kane, July 2006) 4 SER 964-93). The Agencies also hired their own expert consultants to validate both the 1-D and 2-D model studies, AR BLM 04890 (Memorandum, Kunkel to Buck, Apr. 12, 2006), AR BLM 05011 (Memorandum, Conrad to Buck, May 12, 2006), and submitted VADOSE/W model output to the model developer for review, AR BLM 04864 (Memorandum, Newman to Carlson, Mar. 20, 2006). Fed. Defs. ’ Mem. at 12. As the Federal Defendants point out, in addition to the cover system, a “200 foot depth of overburden, and 250 to 750 feet of undisturbed material beneath the overburden smooths out the rate at which water actually enters groundwater.” Citing the explanation in the FEIS that “short-term variations in percolation rates from year to year may be significant at the ground surface but do not affect the recharge rate at the deep water table,” the Federal Defendants state that seasonal variation is less likely than annual variation to have an effect on the deep water table. Fed. Defs. Mem. at 16 (citing FEIS 4-35; 4-34) (Court’s emphasis). For that reason, the Federal Defendants argue, the annual average percolation rates expressed in the modeling was sufficient to allow the BLM to assess the effectiveness of the cover. Id. Although Carlson stated that the additional modeling would take only four days, other technical team members felt otherwise. See, e.g., AR BLM 5579-80 (“could take weeks”); AR BLM 45655 (based on taking 100 days to run 100 years, it would take 20 days to re-run 20 years). Rather than engage in additional testing, the Agencies determined that they had sufficient information with which to assess the potential effectiveness of the cover, that further modeling would not necessarily provide further useful information, and that collecting empirical data from a cover design built pursuant to a detailed testing protocol approved by Carlson would be the preferable alternative. See AR BLM 5722, 5579, 6125. In the Agencies’ view, further modeling would have provided more information about the model rather than about the performance of the Cover System. In other words, “re-running the model studies to report data on a smaller time scale would simply have indicated when during the year the already-estimated percolation through the Cover would occur.” Fed. Defs. ’ Mem. at 15. The Agencies emphasize that Dr. Carlson’s concerns were not ignored. Rather, they were addressed with a test cell verification program and a cover testing and monitoring program, Furthermore, the Agencies adopted his recommendation for detailed plans prior to approval. AR BLM 6125 and 19533 to 19536. Simplot describes the various factors taken into account by the modeling: The agencies’ modeling experts’ conclusion is confirmed by the outside cover design and model expert, O’Kane Consultants. The VADOSE/W model fully considered seasonal effects. O’Kane Dec. ¶ 5. The model inputs include 100 years of daily temperature and precipitation data (including time and duration of precipitation events), wind speed, humidity, and solar radiation. FEIS p. 2-51; AR BLM 46355. Vegetative effects on the cover were considered. The model was run in ID and 2D, and modeling along a slope was performed. FEIS p. 2-51 to 2-52; AR BLM 46320 & 45471. Because the model includes daily events as inputs, each day of spring runoff was by definition considered in the model, and was not “entirely ignored.” AR BLM 46366. The design specifically contemplates that “runoff mainly occurs on the proposed expansion during spring snowmelt.... Once the storage capacity is full (after May 1st) all additional water applied to the surface must runoff.” O’Kane Dec. ¶ 17; AR BLM 45494;7 see also AR BLM 45518 (showing seasonal effects of the cover in the wettest year on record— 1981). What Plaintiffs claim is missing— seasonality- — was in fact examined by the agencies. The model accounted for effects of freezing and thawing and burrowing animals. FEIS p. 2-51; AR BLM 45271 & 45283. The model conservatively over-predicted infiltration by orders of magnitude to account for those very possibilities. The record discloses that all of these issues were considered by the agencies, subject to a robust internal debate, and ending in a reasoned decision. Simplot Mem. at 10-11 (emphasis added). In addition to the test cover design, there was also “extensive site-specific material testing” to determine the best material with which to construct the cover. FEIS p. 2-50; AR BLM 45471. That testing revealed that the Dinwoody material had extremely low permeability and was an excellent medium for storing water. FEIS pp. 2-51 to 2-53. Interestingly, comments from Plaintiffs on the EE/CA for the Pole Canyon removal action recommended the use of a water balance store and release cover design that was working well in Montana, in similar climatic conditions. ARFS 30951. The Court recognizes that it is not to assume the role of scientist and does not do so. However, it must recognize that the Administrative Record clearly indicates that the cover design went through extensive testing and that the Agencies considered comments, suggestions, and concerns, not only of Carlson, but also of Plaintiffs and others that were raised at various stages of the approval process. In the end, not one of the members of the technical team objected to the use of the cover. Even Carlson agreed subject to certain recommendations. The IDEQ was part of the technical review team and participated in the modeling reviewing potential impacts to water quality. The IDEQ ultimately concluded that the Mine expansion would not result in violation of either surface or groundwater quality standards. AR BLM 6528; 6530. The Court finds it very persuasive that the very agency charged with enforcing water quality standards in Idaho was involved from the beginning of the project, assisted with sampling and interpreting results, evaluated the cover design, and put its stamp of approval on the project recommending field testing rather than further modeling. AR BLM 6528-31. This carries far more weight than concerns raised during this lengthy review process by one member of a 25-member technical review team. Furthermore, the BLM ROD imposes enforceable two-phased field testing procedure for evaluating the cover’s performance prior to final implementation. BLM ROD at 18-19. The Court concludes that the Agencies did not act arbitrarily or capriciously in approving the cover design without the additional modeling. They had abundant information on which to base a reasoned scientific decision that the cover would perform as modeled and built-in field testing requirements and strict QA/QC conditions. See Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 993 (9th Cir.1993) (concluding that “after-the-fact” monitoring following review of modeling studies is not arbitrary and capricious). 2. CERCLA Remediation at Pole Canyon and Reclamation of Panel E Plaintiffs challenge the Agencies’ decision to rely on Simplot’s remediation efforts at Pole Canyon and reclamation efforts at Panel E to offset selenium impacts from the Mine expansion when more than 20 miles of area streams have been added to Idaho’s CWA § 303(d) list of impaired waters due to selenium contamination. Pis.’ Mem. at 10 (citing FEIS at 3-36, 4-96; BLM ROD at 16). They characterize the Agencies’ decision as reliance on potential reductions in the remediation areas to “make room” for any discharges from Panels F and G. Id. (citing FEIS at 4-96). Plaintiffs also assert that the Agencies’ reliance on Simplot’s contractor’s conclusion that Pole Canyon and Panel E were the only sources of selenium contamination — which they contend the Agencies themselves had characterized as “preliminary” and “one possible interpretation”— remediation of which would create room for any selenium discharges from the expanded mining operations, was arbitrary and capricious. Pis.’ Mem. at 11. Their concern is summarized as follows: The possibility that other sources are contributing to the region’s existing selenium contamination is central to the question of whether Simplot’s limited remediation efforts at Pole Canyon and Panel E alone will sufficiently offset the expanded mine’s selenium discharges.... Yet, when the agencies rendered their decisions on the mine expansion, Simplot’s contractor’s analysis was transformed from being “preliminary” and only “possible” in the FEIS to being a certainty that would ensure compliance with Idaho’s selenium standard, with nothing in the record to bridge the gap. See BLM ROD at 12 (incorporating FEIS Table 4.3-23 (FEIS at 4-97)). Pis. ’ Mem. at 12. The Agencies and Simplot contend that Plaintiffs are again focusing on one phrase in one document in support of their argument. In their view, to engage in a “fine-grained” analysis of one isolated comment in the midst of the entire record is not within the purview of the Court’s role in conducting an APA review. Federal Defendants agree that meeting Idaho’s ground and surface water quality standards for selenium in South Fork Sage Creek, Sage Creek, and Crow Creek downstream of Sage Creek, already impacted by Simplot’s mining operations, depends on the success of the Pole Canyon CERCLA remediation and Panel E reclamation with a new store and release cover. However, they deny that they rejected the contractor’s underlying analysis. Fed. Defs.’ Mem. at 21 (citing FEIS Volume II, Appendix 2A pt. 2 at 1). They cite results of their independent studies that are set forth in the FEIS Appendix 2A, and note that the EPA commented that “The FEIS does a good job analyzing scenarios of the potential impacts to water quality for the Preferred Alternative based on whether or not reclamation activities are successfully completed.” AR BLM 6502 at 2. They recognize that additional investigations might reveal the need for further remedial actions, but contend that “[t]he available data indicate that Panel E and Pole Canyon are significant enough sources of selenium so that the planned remedy/reclamations will be sufficient to offset selenium from.the expansion.” Fed. Defs. ’ Mem. at 21 (emphasis added). As the Federal Defendants argued at the summary judgment hearing, at the time, the best information available to the Agencies after a site investigation was conducted was that Pole Canyon and Panel E were the primary sources of selenium contamination. Plaintiffs have not asserted that any contrary information was available at the time of the agency action. However, in the FEIS, the Agencies discussed other possible sources of selenium contamination such as Panels A, B, C, and D. See FEIS at 5-17, et seq. Simplot argued at the hearing that the Pole Canyon diversion had been suggested by Plaintiffs as an appropriate remedy for addressing the selenium contamination issue. It also noted that once the Pole Canyon run-on controls are complete, up to 98% of the water will not reach the groundwater under Pole Canyon. See NewField’s Draft Mem. AR BLM 05046. Furthermore, the FEIS recognized that addressing selenium contamination at Pole Canyon and Panel E was only one of several planned remediation measures. In conducting an APA review, the Court must determine whether the agencies’ decision is “founded on a rational conclusion between the facts found and the choices made ... and whether [the agency] has made a clear error of judgment.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1243 (9th Cir.2001). The record reflects that the BLM had volumes of scientific information which identified Pole Canyon and Panel E as major sources of selenium and concluding that remediation at Pole Canyon and reclamation of Panel E could reduce the amount of selenium going into the affected waterways. There was no other information at the time. Based on this record, the Court finds that this was a rational conclusion between the facts found and the decision made. 3. § 401 Permit Plaintiffs contend that the Agencies violated CWA § 401 by authorizing the expansion without a certification from the Idaho Department of Environmental Quality that “the expanded Mine’s selenium discharges will not violate the state’s water quality standards.” Pis.’ Mem. at 13-14. Under Section 401 of the CWA: Any applicant for a Federal License or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate ... that any such discharge will comply with the applicable provisions of [CWA Section 303 inter alia ]. 33 U.S.C. § 1341(a)(1). Some commentators to the DEIS questioned why Simplot was not required to obtain an NPDES permit. The Agencies responded: The seepage from the proposed overburden fill will have no direct connection to surface streams subject to NPDES permitting requirements. The seepage impacts to surface streams described in the EIS occurred through a pathway where the seepage moved down through the bedrock to the groundwater aquifer and then laterally in the aquifer to points of discharge at area streams. The overburden fills in this pathway are not hydrologically connected to the surface streams as typically interpreted by the EPA. Region 10 EPA has commented on the DEIS and did not raise the same concern as the authors of these comments. FEIS 7-267 to 7-268. The Federal Defendants’ primary response to the § 401 argument is that there has been no “discharge” into the navigable waters. The Federal Defendants argue that it is not even necessary for the Court to reach the question of whether the reclaimed pits in Panels F & G are point or nonpoint sources, because in the first instance there is no “discharge.” The CWA does not directly address the issue of discharges to surface waters via hydrologically connected groundwater. See, e.g., Idaho Rural Council v. Bosma, 143 F.Supp.2d 1169, 1180 (D.Idaho 2001); Hernandez v. Esso Standard Oil Co., 599 F.Supp.2d 175, 181 (D.P.R.2009). However, there is little dispute that if the ground water is hydrologically connected to surface water, it can be subject to 401 certification. The EPA’s interpretation is, “in general, collected or channeled pollutants conveyed to surface water via groundwater can constitute a discharge subject to the Clean Water Act.” 66 Fed. Reg. 2960, 3017 (Jan. 12, 2001). Before a planned activity can be subject to a NPDES permit, there has to be “a direct hydrological connection between groundwater and surface waters.” Id. Most of the argument between the parties has centered around whether or not this case involves a “direct” hydrological connection between the new mining pits in Panels F & G and springs which feed Sage Creek and other streams. The EPA has stated that it is a factual inquiry whether or not there is a direct hydrologic connection between the groundwater and surface water. The time and distance by which a point source discharge is connected to surface waters via hydro-logically connected ground waters will be affected by many site specific factors, such as geology, flow, and slope. The EPA has not proposed establishing any specific criteria beyond confining the scope of the regulation to discharges to surface water via a “direct” hydrological connection. As stated in the Federal Register: The determination of whether a discharge to ground water in a specific case constitutes an illegal discharge to waters of the U.S. if unpermitted is a fact specific one. The general jurisdictional determination by EPA that such discharges can be subject to regulation under the CWA is a determination that involves an ecological judgment about the relationship between surface waters and groundwaters. (Emphasis added.) 66 Fed. Reg. at 3018. The EPA’s interpretation is accorded deference. United States v. Mead, 533 U.S. 218, 226-28, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); Skidmore v. Swift, 323 U.S. 134, 139, 65 S.Ct. 161, 89 L.Ed. 124 (1944); United States v. W.R. Grace & Co., 429 F.3d 1224, 1237 (9th Cir.2005) (EPA entitled to Skidmore deference). In this case, the Federal Defendants and Simplot argue there is no direct discharge because the cover system is designed to absorb the moisture and then release it through evapotranspiration. The small amount of water that may pass through the hundreds of feet of overburden would then have to pass through hundreds of feet of bedrock and travel underground through different soil and rock formations for between one to four miles until reaching the surface water. The modeling predicted that it would take between 60 and 420 years for peak concentrations of selenium to arrive at the surface waters, and even then they are projected to be substantially below the water quality standards set by the IDEQ. Plaintiffs strongly argue that the FEIS and comments from EPA suggest that there is a direct hydrological setting at the Mine between groundwater and surface water and which has been described as “unique.” They also cite comments from EPA regarding the “groundwater and interconnected surface water.” EPA FEIS Comments (AR BLM 6502) at 2. The Court views this as a scientific difference of views between the parties. Plaintiffs’ position that there is a “direct” connection is not a baseless argument, just as the Agencies’ position that there is no direct hydrologic connection between what seeps out of the bottom of a pit and what shows up, in some cases hundreds of years later, at a distant location. As the cases cited above suggest, when the Court is charged with trying to ascertain whether the Agencies acted in an arbitrary manner in making an ecological determination, it should be left in the first instance to the discretion of the Agencies. Put another way, there appears in the FEIS a rational basis between the facts found, i.e. there was no direct hydrological connection between the ground water and the surface water, and the decision made, that no 401 certification from the State of Idaho was needed. The Court cannot find that the Agencies, “entirely failed to consider an important aspect of the problem” or offered an explanation “that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference of view or the product of agency expertise.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc). The finding that a rational basis exists for the Agencies’ decision that a 401 certification was not required rests to some degree on the involvement of both the IDEQ and the EPA in this process. These are the two agencies most familiar with 401 certifications and when they would be required. At no point in reviewing this project did the EPA suggest that a 401 certification was necessary. Also, when a 401 certification was needed for part of the project, it was required from Simplot. As noted above, the IDEQ was involved from the beginning as a cooperating agency and agreed that the project would comply with Idaho surface water quality and ground water standards. In a letter dated January 31, 2008, IDEQ stated that phosphate mining was a nonpoint source activity under its regulations, and the Idaho Water Quality Standards relied on best management practices to avoid any violations of water quality standards. AR BLM 006528 to 006531. If there is a violation of the criteria and the activity is not conducted in accordance with BMP, the State of Idaho retains the authority to institute civil or administrative enforcement proceedings. Regarding mining and groundwater, Idaho’s policy is to protect groundwater and allow for mining activities, again through the use of best management practices and monitoring. Id. The January 31, 2008 letter did address concerns about the water quality in Sage Creek from historic selenium pollution and sediment in North and South Fork Deer Creek. The IDEQ concluded: Until the waters are removed from the [303(d) ] list the water quality standards require, for medium to low priority water bodies such as Sage and Deer creeks, that BMP will be implemented to limit selenium, sediment and other pollutant impacts from roads and other activities associated with the mine. According to the Final Environmental Impact Statement (FEIS), with the use of these BMPs, it is predicted that there will be no violation of the water quality criteria applicable to surface waters in the area and there will be no impact on the support status of these streams, including Sage and Deer creeks. Therefore, the mine expansion appears to be consistent with the applicable provisions of the state WQS. AR BLM 006529. Simplot joins the arguments of the Agencies that there is no discharge but also advances the argument that the reclaimed pits in the Mine panels are not “point sources”. The 401 permit requirements are based on discharge of pollutants from “point sources.” A point source is defined as “a discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Another section of the CWA discusses nonpoint sources, which encompass “mining activities, including runoff and siltation from new currently operating, and abandoned surface and underground mines.” 33 U.S.C. § 1314(f)(2) (B). These specified activities are not subject to NPDES permit requirements; rather, the CWA directs the Administrator to develop guidelines for identifying and controlling such sources. Simplot argues that if Plaintiffs’ position were accepted, then any time precipitation infiltrates a mine site to groundwater, no matter at what rate, no matter by what mechanism, then every mine is a point source. Simplot also attacks Plaintiffs’ position that the reclaimed pit itself is a “point source.” In Simplot’s view, the cover and reclaimed pit do not convey water in a discrete conveyance like a pipe or conduit. Instead, it sheds water to a storm water collection system which is covered by a permit and an existing 401 certification. Unsaturated flow through a cover, through hundreds of feet of overburden, and then through hundreds of feet of bedrock to an aquifer, in Simplot’s view would not be a “discernible, confined and discrete conveyance.” 33 U.S.C. § 1362(14). The CWA includes examples of such conveyances, including “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft.” Id. The Ninth Circuit has held that “runoff caused primarily by rainfall around an activity that employs or creates pollutants” cannot be traced to any identifiable point of discharge and is therefore is a nonpoint source. Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir.1984). However, the Ninth Circuit agreed with an earlier decision from the Tenth Circuit, United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir.1979) which found that underground seepage from a sump pit which held toxic leachate solution and reached a nearby river, would be a release from a discernible conveyance, and was subject to NPDES regulation as would be all point sources. The Ninth Circuit then held that releases from sluice boxes would be a point source requiring a permit. Id. at 558. Simplot states Plaintiffs’ argument that a § 401 certification was required is factually and legally incorrect. Simplot points out that the Mine has several 401 certifications, received a 404 permit for the stream crossing from the Corps of Engineers, received a 401 certification from the State of Idaho, the entire Mine is subject to an NPDES multi-sector general storm water permit, and the multi-sector general permit received a 401 certification from the State of Idaho in December 2000. A new MSGP was promulgated in 2008 and the IDEQ certified this permit under 401 in December 2008. The Agencies and the EPA determined that there were no waste streams not covered by the permit. However, the Court agrees with Plaintiffs’ response. The fact that Simplot has other permits does not obviate the need for a 401 certification for expansion into Panel F & G, if in fact one was required. This has been one of the more difficult issues for the Court to decide. Plaintiffs have made some very good arguments concerning the interrelationship between groundwater and surface water in this case. But as Simplot and the Federal Defendants point out, and Plaintiffs do not dispute, none of the phosphate mines in Southeast Idaho have a 401 certification that would cover precipitation that would fall on a reclaimed mining pit, eventually reach ground water and manifest itself many years later at a distant surface water location. If this is a type of “direct” hydrologically connection that would require a permit, then such a decision would not only impact similar mining operations in Idaho, but also potentially across the United States. The flip side of a “direct” hydrological connection would be a “indirect” connection to surface water, that logically would not be regulated by the EPA under the CWA. While many cases have been cited to the Court, there has been no case cited, where based on similar geological facts, a 401 certification has been required. The EPA never took the position that one was required in this case, and it is suggested by the Federal Defendants that this has been their practice nationwide. How an agency interprets its regulations, enforces its policies and construes its prior practices is entitled to deference. See, e.g., Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, — U.S. -, 129 S.Ct. 2458, 174 L.Ed.2d 193 (2009). The Court can also envision future monitoring and enforcement issues. How do you accurately decide if the contamination originated from this source, or perhaps another source, sixty years or four hundred years later. For these reasons, the Court will defer to the Agencies’ decision that a certification was not required in this case. B. National Forest Management Act The Forest Service developed the Revised Forest Plan for the Caribou National Forest (“RFP”) in February 2003, a copy of which was submitted with the Complaint. See Docket No. 18-9. According to the RFP, mines are to be in compliance with applicable state and/or federal surface and groundwater regulatory standards. AR BLM 43325 (Stnd. 1). Furthermore, any new proposed management activities within watersheds containing 303(d) listed waterbodies are to improve or maintain overall progress toward beneficial use attainment for pollutants which led to listing. Id. Finally, phosphate mining overburden and soil materials are to be managed according to state-of-the-art protocols to help prevent the release of hazardous substances in excess of state and/or federal regulatory standards. AR BLM 43358 (Stnd. 4). Plaintiffs claim the Agencies have not complied with NFMA because (1) they have not complied with CWA water quality standards, and (2) they have not complied with NFMA’s requirement that the plan provide for diversity of plants and animals pursuant to 16 U.S.C. § 1604(g)(3)(B) by designating any indicator species for a number of sensitive habitats including those that face “severe threats” from the Mine expansion. Pis.’Mem. at 26-27. 1. CWA — Water Quality Standards Plaintiffs assert essentially the same CWA violations in support of its claim that the agencies violated NFMA, 16 U.S.C. § 1604(i), which requires agencies to “ensure that new proposed management activities within watersheds containing § 303(d) listed waterbodies improve or maintain overall progress toward beneficial use attainment for pollutants which led to the listing.” AR BLM 43325 (Forest Plan, Stnd 1). They further assert that at phosphate mines in particular, the Agencies violated the standard that “[o]verburden and soil materials shall be managed according to state-of-the-art protocols to help prevent the release of hazardous substance