Full opinion text
OPINION DONALD W. MOLLOY, District Judge. I. Introduction The Plaintiffs in these consolidated environmental record review cases are a coalition of environmental advocacy groups led by the Rock Creek Alliance. They seek review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, of federal agency actions and the associated planning documents relating to the approval of the Revett Silver Company’s proposed mining operation near Rock Creek and the Clark Fork River in the Cabinet Mountain Wilderness on the Kootenai National Forest. The lead case, CV 05-107-M-DWM, names the United States Forest Service as the principal Defendant and advances claims under the Endangered Species Act (“ESA”) (Counts I and II), the National Environmental Policy Act (“NEPA”) (Count III), the Clean Water Act and the Forest Service Organic Administration Act of 1897 (the “Organic Act”) (Count IV), and the National Forest Management Act (“NFMA”) (Count VI). The planning documents challenged under the lead case are the 2001 Final Environmental Impact Statement, the 2003 Record of Decision, the Plan of Operations, the 2007 Determination Letter from Forest Supervisor Paul Bradford to Revett, and the three Supplemental Information Reports issued by the Forest Service in 2007. Revett is a permissive intervenor in the lead case. See Doc. No. 25. The companion case, CV 08-28-M-DWM, also features the Rock Creek Alliance as the lead Plaintiff. The companion case alleges only ESA Section 7 claims and names the Fish and Wildlife Service as the Defendant. While there are ESA claims alleged in the lead case, it is through the companion case that the Plaintiffs launch their challenge to the Fish and Wildlife Service’s “no jeopardy” findings with regard to ESA-listed grizzly bears and bull trout. Count I of the Complaint in the companion case alleges an ESA Section 7 claim relating to grizzly bears, while Count II alleges a similar claim relating to bull trout. The planning documents challenged in the companion case are the 2006 Biological Opinion and 2007 Supplement issued by the Fish and Wildlife Service. Revett was allowed to intervene as a matter of right in the companion case. See Doc. No. 16 in CV 08-28-M-DWM. In both cases, the Plaintiffs ask the Court to declare that the agencies have violated the relevant statutes and to enjoin them from authorizing any activity relating to the mine until they have complied with all applicable statutes and regulations. Plaintiffs also seek an award of reasonable fees, costs, and expenses, including attorney’s fees. The cases are ripe for resolution on all parties’ cross motions for summary judgment. The Court heard oral argument on the pending summary judgment motions at a hearing on March 17, 2010, and issued a dispositive Order on March 29, 2010, 2010 WL 1287604. This opinion sets forth the Court’s reasoning. II. Background A. The Rock Creek Mine Project The Rock Creek Mine Project is a proposed underground copper and silver mine located near Noxon, Montana, on 1,560 acres consisting of 749 acres of private land and 811 acres of national forest lands within the Rock Creek drainage. 05-107 AR 91A-2 at 2-3. The projected “potential area of disturbance” covers 482 acres, including 140 acres of national forest lands. Id. at 3. The project will involve construction of a preliminary evaluation adit, followed by an underground copper and silver mine, a mill/concentrator eomplex, water lines, waste lines, power lines, a tailings paste plant and storage facility, a wastewater treatment facility, and a railroad loadout facility. Id. at 7-9. The planned mine is to be constructed using the “room-and-pillar” method, whereby pillars of ore will be left intact to support the rock ceiling above a mined room. Id. at 9. The planned life span of the mine, from evaluation to reclamation, is 30 to 37 years. Id. at 3. The stated purpose and need for the project is to “construct, operate, and reclaim all facilities necessary to mine, remove and transport economically mineable minerals from the Rock Creek deposit.” Id. at 1. Revett owns 99 patented lode mining claims covering 1,686 acres within and 123 acres adjacent to the Cabinet Mountain Wilderness. 05-107 AR 91A-2 at 2. Revett also holds 189 unpatented lode mining and mill site claims and/or tunnel site claims and owns 754 acres of private land within the project area. Id. at 10. These claims were acquired by Revett (formerly Sterling Mining Company) from ASARCO, which had earlier acquired the property rights from original holder Bear Creek Mining Company. 05-107 AR 88-2 at 1-3. The ore reserves that Revett has proposed to mine under the Rock Creek Project are contained in the company’s 99 patented claims. 05-107 AR 91A-2 at 10. The mine project has been approved to take place in two phases. Phase I consists of the construction of an evaluation adit; Phase II would involve construction of the mine and related facilities, and later reclamation. 05-107 AR 91A-2 at 6-7. The planned evaluation adit is a 6,700 foot-long shaft measuring 20 feet high by 16 to 18 feet wide and requiring 18 to 24 months to complete. 05-107 AR 130-27 at 2-4, 2-9. The purpose of the evaluation adit is to gather information about the orebody as well as data on ground water quality and water flow, geochemical data, and rock mechanics data. 05-107 AR 91A-2 at 7. During Phase I, support facilities would be constructed both at the adit site and several miles off-site on Revett-owned land. Facilities proposed for the adit site include a temporary steel shop building, two propane generators, and an above-ground propane tank. 05-107 AR 88-2 at 2-98. Construction on Revett’s land would include office trailers, a garage and warehouse, a water treatment facility, lined ponds, an employee parking lot, and a 500-gallon above-ground fuel tank. 05-107 AR ISO-27 at 2-4, 2-7, 05-107 AR 88-2 at 2-95 to 2-100. The adit would be accessed by existing roads and employ a maximum of 45 workers. 05-107 AR 130-27 at 2-4. The evaluation adit is expected to disturb 8.3 acres of land. 05-107 AR 88-2 at 2-98. Phase II, the construction and operation of the mine, may not begin until after the evaluation adit is complete and Revett has submitted relevant empirical data to the Forest Service and updated its Plan of Operations accordingly. 05-107 AR 91A-2 at 8. Before going forward with Phase II, Revett must submit and receive agency approval of modified and/or updated reclamation and monitoring provisions for its Plan of Operations. Id. The company must also submit a reclamation performance bond and final design and mitigation plans to be implemented during mine construction. Id. The Record of Decision calls for the responsible agencies to conduct a technical panel review of the information obtained during the evaluation adit to determine if the data is consistent with conclusions reached in the Final Environmental Impact Statement, and to order any additional studies that the agencies deem necessary. Id. Revett must also implement reasonable and prudent mitigation and conservation measures and adhere to terms and conditions contained in the 2006 Biological Opinion and 2007 Supplement, and must implement all mitigation and modifications outlined in Alternative V of the Final Environmental Impact Statement and the Record of Decision. Id. Revett’s myriad obligations to take future action based on the information obtained from the evaluation adit substantiate that the Forest Service’s 2003 Record of Decision is not the final step in agency approval of Phase II. The Record of Decision states: The agencies have determined the information collected to date is adequate and do not expect any new circumstances or different results from future monitoring data. If agencies’ review of the evaluation adit information leads them to determine there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts, the agencies will conduct an appropriate level of supplemental analysis before [Revett] will be allowed to proceed with constructing the mine, mill, and all other associated facilities. 05-107 AR 91A-2 at 8. Before it can act Revett must receive written permission from the agencies to proceed with Phase II of the Mine project. Id. Appendix K to the Final Environmental Impact Statement specifies that approval of Phase II is not a foregone conclusion, stating, “It is conceivable that a temporary or permanent shutdown of operations could occur from permit complianee situations requiring enforcement and violation abatement actions, such as failure to adhere to mine rock sampling and testing protocol, or improper implementation of approved mitigations where needed.” 05-107 AR 89-1 at K-6. Elsewhere the Final Environmental Impact Statement says the following in describing the Acid Rock Drainage and Metals Leaching Plan contained in Appendix K: “This plan includes provisions for waste rock handling during adit construction as well as contingency needs should premature project closure occur before mine construction and development begins.” 05-107 AR 88-2 at 2-100. B. Federal Agency Planning and Review ASARCO, Revett’s predecessor, began the application process for the Rock Creek Mine Project on May 6, 1987. The Forest Service and the Montana Department of Environmental Quality (“Montana DEQ”) issued a Draft Environmental Impact Statement for the project in 1995. 05-107 AR 85. The same agencies produced a Supplemental Draft Environmental Impact Statement in 1998. 05-107 AR 86, 87. The Final Environmental Impact Statement was issued in September 2001. 05-107 AR 91A-2 at 3. In preparing the 2001 Final Environmental Impact Statement the Forest Service consulted with the Fish and Wildlife Service; the Environmental Protection Agency; the Army Corps of Engineers; the Montana Department of Fish, Wildlife and Parks; the Montana Department of Transportation; the Montana Hard Rock Mining Impact Board; Sanders County; and Lincoln County. Id. at 15-18. The 2001 Final Environmental Impact Statement considered five alternatives in detail: Alternative I — No action; the project would be denied or bought out by public agencies. Alternative II — Revett’s proposed plan. Alternative III — Revett’s proposed plan with agency-initiated modifications and additional mitigations. Alternative IV — All of the modifications and mitigations in Alternative III plus relocation of mine adits and mill site. Alternative V — Most of the modifications and mitigations from Alternative III together with those from Alternative IV relating to the relocation of the mill site, and several additional modifications and mitigations, including: use of a tailings paste disposal system; enclosure of the rail loadout facility; and relocation of the evaluation adit support facilities away from Rock Creek. Alternative V was analyzed as the preferred alternative. 05-107 AR 88-2 at 2-13 to 2-15. The Forest Service issued a Record of Decision in December 2001 selecting Alternative V with modifications. 05-107 AR 91A-1 at 3. The 2001 Final Environmental Impact Statement lists the federal, state, and local “Permits, Licenses and Approvals” upon which any mining plan adopted by the Forest Service must be premised. 05-107 AR 88-2 at 1-5 to 1-7. Among the required documents is a biological opinion from the United States Fish and Wildlife Service. Id. at 1-5. The Final Environmental Impact Statement incorporated the then-existing 2000 Biological Opinion issued by the Fish and Wildlife Service. 05-107 AR 88-2 at 1-9, 05-107 AR 89-1 Appendix E. The Fish and Wildlife Service withdrew the 2000 Biological Opinion in March of 2002, to settle a legal challenge to the adequacy of the document. AR 05-107 91A-2 at 3. The Forest Service responded by withdrawing its 2001 Record of Decision. 05-107 AR 114-18. A new Biological Opinion was issued in 2003. 05-107 AR 120-1. The Forest Service then issued its still-operative 2003 Record of Decisión approving Revett’s proposed Plan of Operations through the adoption of Alternative V with modifications. 05-107 AR 91A-2 at 3. The Rock Creek Alliance led a coalition of Plaintiffs in challenging the 2003 Biological Opinion in this Court. The disposition of that claim remanded the 2003 Biological Opinion to the Fish and Wildlife Service, finding that the agency’s no-jeopardy conclusion with regard to grizzly bears was arbitrary and capricious due to the agency’s inadequate consideration of the effects of the mine on the imperiled female grizzly bear population. Rock Creek Alliance v. U.S. Fish and Wildlife Service, 390 F.Supp.2d 993, 1009 (D.Mont.2005). The Court also concluded that the agency failed to meet its procedural obligation to consider the cumulative effects of the action on the listed bull trout distinct population segment. Id. at 1010. The Fish and Wildlife Service replaced the remanded 2003 Biological Opinion with its 2006 Biological Opinion. 05-107 AR 126-1. After the Forest Service requested re-initiation of consultation, and in response to new information, the Fish and Wildlife Service issued a Supplement to the 2006 Biological Opinion in 2007 (the “2007 Supplement”), in which it concluded that the re-initiation of formal ESA consultation was not required. 05-107 AR 126-2 at 3. The 2006 Biological Opinion and the 2007 Supplement reach a “no jeopardy/no adverse modification” conclusion as to bull trout and a “no jeopardy” conclusion as to grizzly bears, and are the targets of the Plaintiffs’ ESA claims in these cases. On December 10, 2007, Forest Supervisor Paul Bradford sent a Determination Letter to Revett stating that the Forest Service had reviewed the 2006 Biological Opinion and 2007 Supplement and concluded that the documents did not present substantial changes or contain significant new information, and so the Forest Service would not prepare a supplemental environmental impact statement and would not issue a new record of decision. 05-107 AR 127-7 at 1-2. Supplemental information reports attached to the Determination Letter document the agency’s review of potentially new and significant information. Id.; 05-107 AR 131-2. C. Plaintiffs’ Claims 1. The Lead Case (CV 05-107-M-DWM) Count I of the Amended Complaint in the lead case alleges that the Forest Service violated Section 7 of the ESA by authorizing irreversible and irretrievable commitments of resources prior to the completion of the Forest Service’s required consultation with the Fish and Wildlife Service. Plaintiffs contend that ESA consultation is not complete, despite the issuance of the 2006 Biological Opinion and 2007 Supplement, because the conclusions of the Fish and Wildlife Service are contingent upon the agency’s subsequent approval of monitoring and mitigation actions to be taken with regard to grizzly bears and bull trout. Count II alleges that the Plan of Operations authorized by the Forest Service will result in an illegal take of listed species in violation of ESA Section 9, because the Forest Service has relied on an invalid biological opinion. Count II is contingent on a finding in the Plaintiffs’ favor on at least one of the ESA Section 7 claims put forth in the companion case. Count III of the Amended Complaint claims the Forest Service committed multiple NEPA violations. Plaintiffs say the Final Environmental Impact Statement lacked critical information resulting in an unreliable environmental baseline. They also argue that the agency should have considered an alternative that would have approved only the evaluation adit and not the entire project. Count III further contends that the Forest Service unlawfully deferred its mitigation analysis and its environmental baseline and environmental impacts analysis, and that the Final Environmental Impact Statement failed to review the impacts of discharging mine water to ground water. Count IV alleges violations of the Clean Water Act and the Organic Act. Plaintiffs say the mine will cause sedimentation in violation of the water quality standards established by the State of Montana pursuant to the Clean Water Act. Count VI contains a NFMA claim alleging that the Forest Service’s action violates the applicable Kootenai National Forest Plan. The Forest Plan incorporates the Inland Native Fish Strategy, which in turn sets forth management standards and guidelines for minimizing adverse effects on inland native fish species from planning actions. Plaintiffs argue the Forest Service failed to comply with the Fish Strategy’s management standards. 2. The Companion Case (CV 08-28-M-DWM) Count I of the companion case alleges an ESA Section 7 claim challenging the Fish and Wildlife Service’s “no jeopardy” determination for grizzly bears in the 2006 Biological Opinion. Plaintiffs say the agency violated the law by arbitrarily calculating the necessary acreage of mitigation habitat and by basing its decision in part upon the future acquisition of mitigation habitat that Plaintiffs say is not likely to occur. Count II of the companion case alleges ESA Section 7 violations as to the Fish and Wildlife Service’s conclusions on bull trout. In the critical habitat context, Plaintiffs say the agency failed to assess the impacts of the project on critical habitat’s value for recovery and improperly relied upon a large-scale analysis in reaching its “no adverse modification” conclusion. As to the jeopardy analysis, Plaintiffs contend the agency failed to consider the current status of the bull trout across its range and failed to properly assess the impact of the extirpation of Rock Creek population. III. Analysis A. Legal Standards Applicable to All Claims 1. Standard of APA Review Agency decisions can only be set aside under the APA if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (quoting 5 U.S.C. § 706(2)(A), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). Agency action can be set aside “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Alvarado Community Hospital v. Shalala, 155 F.3d 1115, 1122 (9th Cir.1998). The court must ask “whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ... [The court] also must determine whether the [agency] articulated a rational connection between the facts found and the choice made. [The] review must not rubber-stamp ... administrative decisions that [the court deems] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Ocean Advocates v. U.S. Army Corps of Engineers, 361 F.3d 1108, 1119 (9th Cir.2004) (internal citations and quotations omitted). 2. Summary Judgment Standard Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is particularly applicable to cases involving judicial review of final agency action. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985) (citation omitted). Summary judgment is appropriate in this case because the issues presented address the legality of the Federal Defendants’ actions based on the administrative record and do not require resolution of factual disputes. B. Clean Water Act and Organic Act (Count IV, lead case) 1. Legal Standard a. Clean Water Act The Clean Water Act, 33 U.S.C. § 1251 et seq., was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Clean Water Act fosters the creation of water quality standards, which are then to be developed by the states. 33 U.S.C. § 1313(c). The standards created by the states are subject to EPA review and approval. 33 U.S.C. § 1313(a) and (e). The statute requires that the water quality standards developed by the states set forth the designated uses of the waters involved and water quality criteria for the waters involved based on the designated uses. 33 U.S.C. § 1313(c)(2)(A). Federal agencies are required to comply with state water quality standards “to the same extent as any nongovernmental entity.” 33 U.S.C. § 1323(a). Plaintiffs identify two water quality regulations enacted by the State of Montana that they contend will be violated by the mine project. The Montana standards prohibit increases over naturally occurring turbidity of greater than five nephelometric turbidity units except as permitted in MontCode Ann. § 75-5-318. Mont. Admin. R. 17.30.623(2)(d). The same rule bans increases over naturally occurring concentrations of “sediment or suspended sediment (except as permitted in [§ 75-5-318]), settleable solids, oils, or floating solids, which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to ... wild animals, birds, fish, or other wildlife.” Mont. Admin. R. 17.30.623(2)(f). A citizen may bring a private action against an alleged polluter under the Clean Water Act, but not without first giving notice to the defendant. 33 U.S.C. § 1365(a) and (b). The statute prohibits the filing of a private citizen suit “prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order[.]” 33 U.S.C. § 1365(b)(1)(A). Federal regulations require that the congressionally-mandated notice identify the standard, limitation, or order violated, describe the activity constituting and alleged violation, give the location and date or dates of the alleged violation, and name the party responsible for the alleged violation. 40 C.F.R. 135.3(a). The notice must also contain the full name, address, and telephone number of the person giving notice. Id. The notice requirement is to be strictly construed, and a failure to give proper notice robs a district court of subject matter jurisdiction over a subsequent suit in federal court. Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354-55 (9th Cir.1995). b. Organic Act The Forest Service Organic Administration Act of 1897, 16 U.S.C. § 551, requires the Forest Service to regulate the “occupancy and use” of the national forests and to “preserve the forests thereon from destruction.” Federal regulations require that mining activity “shall be conducted so as, where feasible, to minimize adverse environmental impacts on National Forest surface resources[.]” 36 C.F.R. § 228.8. The mining operator’s plan of operations must describe how the operator intends to meet the regulatory requirements for environmental protection put forth in 36 C.F.R. § 228.8, and the operator must comply with all state and federal water quality standards, including those promulgated under the Clean Water Act. 36 C.F.R. §§ 228.4(c)(3), 228.8(b). The operator also has a separate regulatory obligation to “take all practicable measures to maintain and protect fisheries and wildlife habitat which may be affected by the operations.” 36 C.F.R. § 228.8(e). 2. The Plaintiffs’ Arguments The Plaintiffs argue that the Forest Service has not complied with water quality standards and has failed to protect fisheries as required by the Clean Water Act. The claims relate to what the Plaintiffs allege will be significant increases in sedimentation in Rock Creek as a result of the mine project, and in particular the Forest Service’s estimate that the mine project would result in 400 tons of sediment per year entering Rock Creek. Because Plaintiffs offer no citations or argument related to Montana’s numeric turbidity regulatory standard, it is assumed their Clean Water Act claim alleges violation of the narrative standard at Mont. Admin. R. 17.30.623(2)(f), prohibiting increases in sedimentation “which will or are likely to create a nuisance or render the waters harmful, detrimental, or injurious to ... fish[.]” Mont. Admin. R. 17.30.623(2)(f). The Plaintiffs’ argument under the Organic Act appears to be derivative of their Clean Water Act claim. See Plaintiffs Opening Brief (Doc. No. 90) at 7 (“The [Forest Service] violates the Organic Act and Part 228 regulations when it fails to ensure that water quality standards and fisheries will be protected at all times.”). 3. Subject Matter Jurisdiction Revett argues that the Plaintiffs’ Clean Water Act claim fails for lack of subject matter jurisdiction because the Plaintiffs did not comply with the notice provision of 33 U.S.C. § 1365(a) and (b), as implemented by 40 C.F.R. 135.3(a). Plaintiffs yield to Revett’s claim that they failed to provide notice, but argue that notice is unnecessary because they are not proceeding under the Clean Water Act’s citizen suit provision at § 1365, but instead are suing the Forest Service pursuant to the APA and 33 U.S.C. § 1323(a), which makes federal agencies subject to water quality standards “to the same extent as any nongovernmental entity.” Whether there is subject matter jurisdiction over the Clean Water Act claim depends on whether the Rock Creek Mine Project is a point source discharge or a nonpoint source discharge for purposes of the federal regulations. The citizen suit provision at 33 U.S.C. § 1365 does not authorize an action alleging nonpoint source pollution in violation of the Clean Water Act; such claims must instead be brought under the APA and 33 U.S.C. § 1323(a), which has no notice requirement. Oregon Natural Resources Council v. United States Forest Service, 834 F.2d 842, 849-51 (9th Cir.1987). Where a plaintiff seeks to enforce the Clean Water Act against a point source of pollution, the claim properly arises under the citizen suit provision, and is therefore subject to the notice requirement. Id. at 851. The Ninth Circuit in Oregon Natural Resources Council explicitly stated that judicial review under the APA is only available in cases involving nonpoint sources of pollution: This decision should not be interpreted to suggest that plaintiffs seeking relief under the [Clean Water Act] may circumvent the notice requirement of the citizen suit provision by resorting to the APA.... Where plaintiffs may otherwise proceed under the citizen suit provision, they should not be allowed to bypass the explicit requirements of the Act established by Congress through resort to ... the APA[.]” Id. at 851. The Plaintiffs concede the Rock Creek Mine project is a point source, a concession noted in an earlier Order. See Doc. No. 190 at 6. Consequently, the Plaintiffs’ claim arises under the citizen suit provision of § 1365, and the notice requirement applies. The failure to provide the required notice deprives this Court of subject matter jurisdiction over the Clean Water Act claim. That claim is dismissed under Fed. R.Civ.P. 12(h)(3). Washington Trout, 45 F.3d at 1354-55. The Plaintiffs’ arguments relating to the violation of state water quality standards under the Clean Water Act will not be considered in deciding Count IV of the Amended Complaint in the lead case. The Plaintiffs are then left with a claim under the Organic Act, which authorizes the Forest Service to regulate occupancy and use so as to preserve the national forests “from destruction.” 16 U.S.C. § 551. Plaintiffs count on the regulations set forth at 36 C.F.R. §§ 228.1-228.8, although those regulations do not relate directly to the agency but instead prescribe the obligations and standards to which the mine operator is subject. The Plaintiffs reason that 36 C.F.R. § 228.8(e), in conjunction with the Organic Act, requires the Forest Service to minimize adverse environmental impacts where feasible and to reject any mining plan for which the operator has failed to take all practicable measures to maintain and protect fisheries and wildlife habitat. At least one case holds that Forest Service action may be set aside under the Organic Act for failure to adhere to 36 C.F.R. § 228.8, Hells Canyon Preservation Council v. Haines, 2006 WL 2252554 at *6 (D.Or.2006), and neither Revett or the Forest Service disputes the viability of the Plaintiffs’ Organic Act claim standing alone. The arguments with regard to sedimentation are analyzed to determine whether the Forest Service arbitrarily and capriciously failed to minimize adverse environmental impacts where feasible and failed to require Revett to take all practicable measures to maintain and protect fisheries and wildlife habitat. 4. Discussion a. Effects of the Mine Project on Fisheries The Plaintiffs’ Organic Act claim is based on the added sediment in Rock Creek that the mine will cause, which Plaintiffs say will impermissibly degrade aquatic habitat. Summarizing the current (pre-project) conditions, the 2007 Supplement states with respect to bull trout, “In general, habitat conditions in the Rock Creek watershed are degraded with relatively high levels of sediments present in spawning gravels and periods of stream flow intermittence occurring in many years.” 05-107 AR 126-2 at B-60. Fine sediment levels in the watershed are currently “at-risk,” meaning the present conditions will allow the bull trout population to persist, “but the population may not improve unless the levels of fine sediment decrease to a point where survival of bull trout eggs would increase.” Id. at B-74. The Fish and Wildlife Service identifies increases in fine sediment during the mine’s five-year construction phase as “[t]he most obvious direct impact” to bull trout. Id. at B-73. The 2007 Supplement states, The highest levels of sediment loading are expected to occur during the 5-year construction period with significantly decreasing levels of additional sediment entering the stream over the 35-year operating life of the mine. The increase in sediment loading is estimated to be 46% in the West Fork of Rock Creek, 20% in the East Fork of Rock Creek, and 38% overall for the entire Rock Creek watershed. These values are probably over estimates and likely present a worse-case [sic] scenario because of the parameters used in the modeling evaluation and because the evaluation did not include the proposed sediment abatement mitigation activities, which would occur before, during, and after construction. Id. at B-73. The increase of 46 percent in the West Fork of Rock Creek is “a result of evaluation adit and access road construction,” and therefore will occur mostly, if not entirely, during Phase I. 05-107 AR 89-1 at N-10. The estimated increase in sedimentation is based on the Forest Service’s “R1 WATSED” ecological model. The Forest Service ran the model for the years 1999-2031 to derive an annual mine sedimentation estimate. 05-107 AR 71-2 at 7-8. By subtracting the sediment amount in existing 1998 conditions from the projected sediment amount during construction, the WATSED model predicted an annual increase in sedimentation of 66.1 tons per year at the height of mine construction. 05-107 AR 89-1 at N-9. Because the Forest Service concluded that the WATSED analysis accurately models real-world processes but consistently under-predicts actual numbers, the agency applied a multiplier of 3 to account for under-estimation of real world effects, resulting a prediction of 198.3 tons per year. Id. The Service then doubled the estimate to “compensate for the marginal accuracy of the model, the limited amount of validation data, and less than 100 percent effective mitigation.” Id. The resulting estimate of 396.6 tons per year was rounded up to 400 tons per year “[t]o dilute the aura of precision that 396.6 tons/year implies.” Id. Based on those calculations, the Record of Decision requires Revett to reduce sediment from existing source areas by 400 tons per year to offset the increased sedimentation from mine construction. Id.; 05-107 AR 91A-2 at 20. The 400-ton sediment source reduction requirement is in addition to the other mitigation measures contained in the chosen alternative. 05-107 AR 89-1 at N-9. The Forest Service concludes that the combination of the sediment source reduction requirement and the other required mitigation measures will not result in a net increase in sediment in the Rock Creek drainage and may slightly improve sediment conditions over the long term. 05-107 AR 88-2 at 4-133, 05-107 AR 89-1 at N-10, 05-107 AR 91A-2 at 20, 05-107 AR 72-32 at 8. The Fish and Wildlife Service stated in the 2007 Supplement, It is likely habitat impacts caused by an increase in sediment loading in the Rock Creek watershed would occur sometime during the first five years when site disturbance is greatest due to construction of roads and facility development. After this 5-year period, sediment levels would probably stabilize, most likely within two years, and gradually return to near pre-project conditions over some unknown period of time. 01-107 AR 126-2 at B-76. b. Analysis To support their Organic Act claim, the Plaintiffs insist that the Forest Service failed to take feasible steps to minimize environmental impacts and failed to require Revett to take practicable measures to protect fisheries because (1) the Record of Decision does not require adequate mitigation during the Phase I evaluation adit period; and (2) based on the conclusions in the 2007 Supplement, mitigation efforts will not adequately protect bull trout habitat from sediment increases during the mine’s five- to seven-year construction and facility development period. i. Mitigation During Phase I Plaintiffs reason that under the 2007 Supplement, the 400-ton sediment source reduction requirement does not take effect until after the Phase I evaluation adit period, arguing that the lack of a 400-ton annual offset in sediment during the adit phase violates the Organic Act. 05-107 AR 126-2 at B-98. The Forest Service maintains that the sediment source reduction requirement takes effect after the adit phase, but notes that other sediment mitigation measures are required during all stages of the mine project, including Phase I. The 2003 Record of Decision contains a table of stipulations setting forth mandatory mitigation requirements. 05-107 AR 91A-2 at 4; Attachment 1. Attachment 1 contains the following relevant agency stipulations: • Road re-routing and bridge construction (5, 5(a), 5(b)) • Best management practices to minimize potential impacts to bull trout (41) • Sediment catchment basins, vegetation buffers, bridges, agency pre-approval of road and facility construction sites (53(b)~(e)) • Procurement of a storm water permit and 318 permit from DEQ (54) • Water quality monitoring and a remedial action plan, including monitoring during Phase I (73, 73(a), 73(b)) • Transportation monitoring (78) 05-107 AR 91A-2, Attachment 1. Additionally, Stipulation 64 mandates that all final design plans, revegetation and reclamation plans, and plans required for state water quality permitting be submitted and approved by the relevant agencies prior to construction of the evaluation adit. Id These requirements will no doubt yield some benefits, but none of them appears to be likely to off-set or otherwise significantly affect the amount of sediment introduced to the watershed during Phase I. The Forest Service points out that it has also established a monitoring plan that includes monitoring during the evaluation adit at Appendix K of the Final Environmental Impact Statement, as amended by the 2004 Record of Decision. 05-107 AR 91A-2, Attachment 2. The Plaintiffs contend that Appendix K’s monitoring plan “is just a plan to monitor the Phase II discharges.” Doe. No. 124 at 5. Because Plaintiffs raise this argument for the first time in their Reply Brief, the Defendants had no opportunity to respond. A review of Appendix K shows that monitoring will occur during Phase I as well. Appendix K states, “The water resources monitoring program would begin during the first quarter of construction of the evaluation adit, and would be maintained during the life of the project as well as after reclamation for a period of time to be specified by the Agencies.” 05-107 AR 91A-2, Attachment 2 at 7. The 2008 Record of Decision specifically requires Revett to “[mjodify and/or update the monitoring portion of the Plan of Operations for the evaluation adit as outlined in the revised Appendix K in Attachment 2 of the [Record of Decision.]” 05-107 AR 91A-2 at 65. The Forest Service also relies on the Record of Decision’s requirement that Revett obtain a discharge permit under the Montana Pollutant Discharge Elimination System (the “MPDES Permit”). 05-107 AR 91A-2 at 1, 63-64. The permit is the means by which the Montana DEQ enforces state water quality standards, and the Forest Service is allowed to rely on the Montana DEQ to issue and enforce a valid permit. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965-66 (9th Cir. 2006). Plaintiffs do not quibble with the propriety of the agency’s reliance on the MPDES Permit, but complain that the permit does not apply to the Phase I adit. The permit lists five covered discharge points, which the Plaintiffs say are “from Phase II facilities only.” Doc. No. 124 at 3; 05-107 AR 89-1, Appendix D at 7. It is not clear from the record that all of the five discharge points relate exclusively to Phase II activity, and the Plaintiffs offer nothing more than a conclusory statement in support of their argument. Because Plaintiffs first raise the issue in their Reply Brief, the Defendants did not have an opportunity to respond. The clear implication is that the Forest Service maintains that the MPDES Permit covers only Phase I of the Mine project. Regardless, the argument is ultimately a red herring. Plaintiffs cannot meet their burden on their Organic Act claim by insisting that the MPDES Permit does not apply to the adit, and they do not make a serious argument that the Record of Decision authorizes the evaluation adit to go forward without complying with state water quality standards. The 2003 Record of Decision requires Revett to obtain all necessary permits for all phases of the mine project, including permits related to water quality: “The discharge limitations and monitoring requirements are necessary to ensure that all project-related discharges comply with the Montana Water Quality Act.” 05-107 AR 91A-2 at 63. The Forest Service has shown that its Record of Decision requires monitoring and permitting in relation to Revett’s construction of the Phase I evaluation adit, along with multiple mitigation measures. What the Forest Service’s decision does not do is impose upon Revett any sediment reduction requirement for Phase I. The Forest Service failed, both in its briefing and at the hearing on March 17, 2010, to provide any reasonable explanation for its decision to excuse Revett from the sediment source reduction requirement during Phase I of the Project. The failure to include such a requirement is not a violation of the Organic Act per se; the statute does not dictate that quantified sediment reduction measures be in place in every instance. In this situation, however, the absence of such a requirement is a fatal defect. The Forest Service’s view that the project will result in no net increase in sedimentation within the Rock Creek watershed is contingent on the operation of the sediment source reduction requirement to offset the introduction of new sediment. It is incongruous for the Forest Service to conclude that protection of aquatic habitat in Rock Creek requires that 400 tons of sediment must be removed each year during the construction phase, but that no sediment reduction measures are needed during Phase I, which by the agency’s own estimate will bring about a 46 percent increase in sedimentation in the West Fork of Rock Creek. 05-107 AR 89-1 at N-10. It is all the more important to initiate sediment reduction measures as soon as possible in light of Forest Service modeling indicating “a time lag of four years between a change in sediment input and a change in streambed fine sediment.” Id. Revett’s obligation to remove 400 tons of sediment annually will extend from the construction of the mine through the close of operations, a term that is intended to span 30 years or more. The Phase I evaluation adit is expected to take 18 to 24 months. A Phase I sediment reduction requirement would force Revett to begin its mitigation activity two years early, but neither the Forest Service nor Revett has explained why such a requirement is unreasonable or impracticable. The benefits of sediment reduction during Phase I are evident from the record, and given what lies ahead for Revett during Phase II, the costs are relatively minor. The record is bereft of analysis or explanation concerning this problematic but capacious gap. In the absence of any reasonable explanation for the Forest Service’s decision to allow Phase I to go forward without sediment reduction measures in place, the decision is arbitrary. Under the Organic Act the Forest Service must minimize adverse environmental impacts where feasible and must require Revett to take all practicable measures to maintain and protect fisheries and wildlife habitat. The feasibility and practicality of mitigation measures are evident in the proposals for Phase II. The seeming explanation is not technical but more a consideration of risk for ultimate approval of Phase II and how costs should be spread in Phase I. Nonetheless, if this is the case, it does not comport with congressional intent. The extension of the sediment source reduction requirement into Phase I is a feasible, practicable measure that will help to minimize the adverse environmental impacts from Phase I of the mine project. The Plaintiffs’ are entitled to summary judgment in their favor on this aspect of their Organic Act claim, ii. Sedimentation During the Construction Period The Plaintiffs maintain that the Forest Service has violated the Organic Act by allowing excessive sediment loading during the first five to seven years of the mine project. The claim is based on this statement by the Fish and Wildlife Service in the 2007 Supplement: It is likely habitat impacts caused by an increase in sediment loading in the Rock Creek watershed would occur sometime during the first five years when site disturbance is greatest due to construction of roads and facility development. After this 5-year period, sediment levels would probably stabilize, most likely within two years, and gradually return to near pre-project conditions over some unknown period of time. 01-107 AR 126-2 at B-76. Plaintiffs also note the 2007 Supplement’s statement that habitat conditions in the watershed are “degraded,” and functioning “at-risk” with regard to sediment. Id. at B-60, B-62. In its “no-jeopardy” determination, the Fish and Wildlife Service stated, “Implementation of the proposed action is likely to reduce the reproduction, numbers, or distribution of bull trout within Rock Creek for five to seven years resulting in the local population of bull trout decreasing compared to existing levels.” Id. at B-87. Plaintiffs hold that based on these conclusions that the Organic Act requires the Forest Service to reject the mine project because it does not require Revett to take all practicable measures to protect fisheries. The Forest Service agrees with the findings of the Fish and Wildlife Service, but argues that the language of the 2007 Supplement does not support the Plaintiffs’ Organic Act claim. The Forest Service notes that the Fish and Wildlife Service ultimately issued a “no jeopardy” opinion, concluding that the mine project is “not likely to jeopardize the continued existence of bull trout at the scale of the Lower Clark Fork Core Area, and by extension not likely to jeopardize at the Clark Fork River Management Unit and the larger scale of the Columbia River Interim Recovery Unit.” 01-107 AR 126-2 at B-88. Other language in the 2007 Supplement suggests that the Fish and Wildlife Service does not anticipate serious harmful effects to bull trout habitat: Increases in sedimentation, water quality degradation, and changes in channel habitat and complexity related to mining activities are anticipated to reduce the functional ability of critical habitat to a small degree below baseline conditions temporarily, for about five to seven years associated with the construction period. The areas of critical habitat mostly affected in Rock Creek would be small localized stream segments in close proximity to the project area. All the primary constituent elements in Rock Creek are expected to remain functional, albeit at a lower level. Id. at B-90. Along with its “no jeopardy” finding, the Fish and Wildlife Service concluded that the mine project is “not likely to destroy or adversely modify bull trout critical habitat.” Id. As it relates to the Organic Act, the parties appear to be content to let the 2007 Supplement speak for itself. The Plaintiffs emphasize select language in an effort to show that the Forest Service has approved a project that will have harmful environmental effects on bull trout, while the Forest Service focuses on the conclusions of the 2007 Supplement that the mine project will not result in jeopardy and will not destroy or adversely modify critical habitat. The Forest Service has the better argument. The Plaintiffs’ reliance on cherry picked statements from the Fish and Wildlife Service’s ESA analysis is undermined by the conclusions of the 2007 Supplement with respect to jeopardy and bull trout habitat. The Plaintiffs are left in a position that requires them to argue either that the Organic Act is more protective of listed species than the ESA, or that the Fish and Wildlife Service’s jeopardy and critical habitat conclusions violate the ESA. The Plaintiffs don’t argue that the Organic Act extends protections to endangered species beyond that which is required by the ESA. On the other hand the question of whether the Fish and Wildlife Service’s opinion in the 2007 Supplement violates the ESA is more properly addressed in the discussion of the Plaintiffs’ ESA claims below. The Plaintiffs’ position is weakened by the qualifying language in the Organic Act standards. The implementing regulations do not impose strict duties, but rather general requirements: the Forest Service must take “feasible” steps to “minimize” adverse environmental impacts and must insist that a mining operator take all “practicable” measures to “maintain and protect” fisheries and habitat. 36 C.F.R. § 228.8, 228.8(e). The Plaintiffs’ excerpts from the 2007 Supplement, when viewed in isolation, allow for the conclusion that the Forest Service has approved a project that will have some negative effects on bull trout. When the record is considered as a whole, however, and taking into account the deferential standard of review under the APA, the Plaintiffs’ choice selections from the ESA analysis do not show a violation of the Forest Service’s duties under the Organic Act in light of the mitigation, monitoring and permitting required during Phase II in the 2003 Record of Decision. The Federal Defendants and Revett are entitled to summary judgment on the Plaintiffs’ Organic Act claim as it relates to sedimentation during the construction period. C. NEPA (Count III, lead case) 1. Legal Standard NEPA is intended to focus the attention of the government and the public on the likely environmental consequences of a proposed agency action. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Act “places on the agency the obligation to consider every significant aspect of the environmental impact of the proposed action” and “ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citations omitted). The law imposes procedural obligations on government agencies. “NEPA does not work by mandating that agencies achieve particular substantive environmental results.” Marsh, 490 U.S. at 371, 109 S.Ct. 1851. NEPA dictates the necessary procedure an agency must follow, but does not state any requirements relating to the outcome of the agency’s decision making process. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA requires a federal agency to prepare an environmental impact statement detailing the environmental impacts of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). This obligation includes the duty to consider “[wjhether the action is related to other actions with individually insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(7). “If several actions have a cumulative environmental effect, ‘this consequence must be considered in an [environmental impact statement].’ ” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir.1998) (quoting Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1378 (9th Cir.1998)). The environmental impact statement must describe the impacts of the proposed agency action, any adverse impacts of the proposed action that cannot be avoided, and alternatives to the proposed action which were considered by the agency. Robertson, 490 U.S. at 349, 109 S.Ct. 1835. The scope and nature of the direct, indirect, and cumulative impacts analysis is a matter committed to the sound discretion of the agency. Kleppe v. Sierra Club, 427 U.S. 390, 413-14, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). If the nature and scope of the analysis is challenged, the reviewing court may only examine whether “the agency has taken a ‘hard look’ at the environmental consequences.” Inland Empire Public Lands Council v. U.S. Forest Service, 88 F.3d 754, 763 (9th Cir.1996) (quoting Kleppe, 427 U.S. at 410 n. 21, 96 S.Ct. 2718). A court may not interject itself within the area of discretion of the executive as to the choice of the action to be taken; only if the agency’s analysis of the environmental impact is “arbitrary and capricious” or “contrary to the procedures required by law” can the reviewing court conclude that the agency did not take the requisite “hard look.” Kleppe, 427 U.S. at 410 n. 21, 96 S.Ct. 2718; Inland Empire, 88 F.3d at 763. 2. The Plaintiffs’ NEPA Arguments The Forest Service stated in the 2003 Record of Decision involving this project that “there is more than enough information in the project record” to justify approval of the entire Mine Project. 05-107 AR 91A-2 at 8. Nonetheless, due to the Forest Service’s desire to “minimize and manage the potential risk from this project as much as possible,” Revett may not begin Phase II until the information obtained from the evaluation adit has been examined and the agency has approved modifications to Revett’s Plan of Operations. Id. Many of the NEPA claims in the lead case are based on the Plaintiffs’ objection to the Forest Service’s conditional approval of Phase II before the completion of the Phase I evaluation adit. Plaintiffs insist that the Forest Service violated NEPA when it approved Phase II of the Mine Project when it lacked critical information that can only be learned during the Phase I adit. According to the Plaintiffs, NEPA required the Forest Service to give consideration to an alternative that would have approved just the Phase I adit but not Phase II. The Plaintiffs claim the Forest Service illegally deferred until after the Phase I adit its NEPA-mandated analysis of mitigation measures, environmental baseline, and the environmental impacts. Plaintiffs also maintain the Forest Service violated NEPA by failing to review impacts from a new water discharge plan. 3. Discussion a. Consideration of Phase I as a Stand-Alone Alternative NEPA requires the consideration of a reasonable range of alternatives to an agency’s proposed action. 42 U.S.C. § 4332(2)(C)(iii) and (2)(E). “Consideration of reasonable alternatives is necessary to ensure that the agency has before it and takes into account all possible approaches to, and potential environmental impacts of, a particular project.” Northern Alaska Environmental Center v. Kempthorne, 457 F.3d 969, 978 (9th Cir.2006). The agency must consider an appropriate range of alternatives, but need not discuss every available alternative, and has no obligation to consider alternatives similar to others already considered or alternatives that are infeasible or ineffective. Id. The approval of the Phase I evaluation adit as a stand-alone project was not among the alternatives given formal consideration in the Final Environmental Impact Statement. 05-107 AR 91A-2 at 47-60. In response to a comment suggesting that the Forest Service should have considered such an alternative, the agency wrote: The alternative of only analyzing the evaluation adit was considered. When the agencies received the Evaluation Adit Application, they already had been analyzing the mine application for a number of years. It was determined by our MEPA/NEPA specialists that we could not just analyze the evaluation adit application since the mine and the evaluation adit were connected actions. The bottom line is the Agencies had to proceed with a full analysis as is currently being done. Even if the whole proposal is permitted, [Revett] would still have to do the evaluation adit work first and then show that the findings are consistent with the assumptions used in the EIS analysis. 05-107 AR 91-1, NEPA 801 at 6. To support its determination that Phase I and Phase II had to be evaluated as connected actions, the Forest Service cites 40 C.F.R. § 1508.25(a)(1), which defines connected actions as actions that “are closely related and therefore should be discussed in the same impact statement.” The regulation states that actions are connected if they “[c]annot or will not proceed unless other actions are taken previously or simultaneously.” 40 C.F.R. § 1508.25(a)(1)(h). Plaintiffs cite Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir.1988), in support of their argument that the Forest Service should have examined Phase I as a separate alternative. In the Bob Marshall case, the agencies admitted that they failed to consider a “no action” alternative and argued unsuccessfully that the proposed action did not involve “unresolved conflicts” concerning resource usage and so Section 4332(2)(E) mandating consideration of alternatives did not apply. Id. at 1228. Here the parties agree that the Forest Service is required to consider all reasonable alternatives, and the dispute is over whether the Forest Service is correct in its regulatory conclusion that the proper scope of analysis for all alternatives is to consider the Mine project as a whole. The decision not to consider Phase I as a separate alternative does not constitute a failure to take a “hard look” at the alternatives. The Forest Service reasonably argues that it was required to analyze Phases I and II together because of then-contingent nature. Moreover, the practical effect of the Forest Service’s decision in this case means that a “Phase I only” alternative is similar to the chosen alternative, because in both scenarios the Forest Semce’s final approval for Phase II of the project can only occur after Phase I is complete. Before listing the required modifications, mitigations and updated plans for Phase II, the 2003 Record of Decision states, “[Revett] cannot implement the second phase of the project (facility construction, mine development, and mine operation) until the agencies review and confirm that the following items have been submitted and are acceptable. The agencies will then inform [Revett] in writing that operations may proceed.” 05-107 AR 91A-2 at 8. The selected alternative operates like the alternative Plaintiffs advocate, as Phase I is currently authorized to proceed, but Phase II will require subsequent agency approval. The Plaintiffs object to the Forest Service’s decision to approve Phase II while withholding final authorization to go forward on that phase, but that objection is best articulated in the Plaintiffs’ arguments about deferral of required NEPA analyses, which are analyzed in the next part of this opinion. The stated objection is not a compelling claim for failure to consider alternatives. The Forest Service has a plausible justification based on the regulations for its decision to analyze the mine project as a whole, and, as far as the purposes underlying the “consideration of alternatives” requirement are concerned, there is little practical difference between the Plaintiffs’ preferred alternative and the one chosen by the agency. The Plaintiffs have not shown that the Forest Sex-vice’s consideration of alternatives was arbitrary and capricious or contrary to law. Plaintiffs’ NEPA claim on this point is rejected, b. Deferral of Analysis The Plaintiffs contend that the Forest Sendee’s decision to approve Phase II of the Mine project subject to the agency’s subsequent review of new plans based on the information learned during the adit phase results in the impermissible defei-ral of NEPA-mandated analyses. i. Mitigation NEPA’s implementing regulations require a discussion in an environmental impact statement of measures to mitigate environmental consequences “not already included in the proposed action or alternatives.” 40 C.F.R. § 1502.14(f); 40 C.F.R. § 1502.16(h); 40 C.F.R. § 1508.25(b)(3). Under 40 C.F.R. § 1505.2(c), “A monitoring and enforcement program shall be adopted and summarized [in the record of decision] where applicable for any mitigation.” The discussion of mitigation must contain “sufficient detail to ensure that environmental consequences have been fairly evaluated.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA is procedural so it requires only a sufficient discussion of mitigation; it does not impose a substantive requirement that a complete mitigation plan be adopted. Id. at 352, 109 S.Ct. 1835. The Plaintiffs claim the Forest Sendee illegally deferred its mitigation analysis by approving the mine project while allowing Revett to make future submittal of a watershed assessment including the following components, among others: (1) An assessment of habitat conditions for bull trout. The assessment would include information on quantity and quality of spawning, rearing and over wintering conditions for resident and adfluvial bull trout. (2) An assessment of possible sediment mitigation and reduction projects within the Rock Creek basin as outlined in the proposed action. Recommendations of stream enhancement projects should be included in that assessment. (3) A feasibility assessment (including engineering options, conceptual designs, estimated costs and expected sediment load effects) for sediment abatement measures that would reduce sediment levels in the Rock Creek drainage. This assessment would include any designs for the proposed stream diversion around the proposed paste facility and a complete roads analysis and recommendations associated with proposed mitigat