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If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Obama begins reversal of Bush's ESA consultation regulations by executive memo | Main| Alaska: America’s Endangered Species Act battleground »

Judge rejects FWS biological opinion on Florida development permit and impacts to wood storks, but finds Army Corps met conservation duties

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National Wildlife Federation v. Souza, 2009 U.S. Dist. LEXIS 99674 (S.D. Fla., Oct. 23, 2009)

BACKGROUND: In 2007, the Corps issued a Clean Water Act ("CWA") § 404 permit to J.D. Nicewonder. Such permit has since been transferred to the Intervenor. Plaintiffs allege that by issuing this permit the Corps "has permitted the destruction of 645 acres of the Cocohatchee Slough in Collier County for a 1,713-acre luxury residential golf community known as 'Mirasol.'" (D.E. No. 1 at 2-3). Plaintiffs allege that the Cocohatchee Slough "stores and filters water needed to sustain life in the Western Everglades." Id. at 2. Plaintiffs also allege that the Cocohatchee Slough "provides essential 'core' foraging habitat for the endangered word stork." Id. at 3. Specifically, Plaintiffs allege violations of the Endangered Species Act ("ESA"), the Clean Water Act ("CWA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedures Act ("APA").

RULING: After careful consideration, the Court finds that the FWS's biological opinion is inadequate with regard to its failure to analyze the impacts of other federal projects in the area in analyzing the environmental baseline and based on the FWS's calculation of fish prey density in the opinion. The Court declines to reach Plaintiffs' argument that Corps's reliance on this biological opinion with respect to these issues was arbitrary and capricious. The Court, however, finds all Plaintiffs' other arguments are without merit.

KEITHINKING: Noteably, the opinion by Judge Jose Martinez includes a specific endorsement of the Corps' Southwest Florida Environmental Impact Statement as sufficient to meet the ESA's 7(a)(1) affirmative duty to conserve listed species.
EXCERPT RE: CONSERVATION DUTY.   In this case, the Court finds that the preparation and implementation of the Southwest Florida Environmental Impact Statement demonstrates that the Corps has created a meaningful program to conserve the wood stork and that it has carried out programs for the conservation of the wood stork. The Corps "initiated the . . . [SWFEIS] out of concern [for] whether the incremental (permit-by permit) reviews 17 were adequately addressing cumulative and secondary effects of the wetland filling the rapidly growing Southwest Florida area." (D.E. No. 52-5 at 2). The Corps specifically notes that scrutiny of their process is important because of the "important resources" in the area, including ten endangered or threatened species. Id. at 1, 3. In the SWFEIS, the Corps proposes "to use the information in . . . [the SWFEIS] in the review of future permits" to better identify issues relevant to the proposed project. The Corps has also developed "a set of standardized natural resource criteria" to be used in review permit applications in southwest Florida. Id...   The SWFEIS also gives recommendations "for the recovery of the species" with specific emphasis on the protection or restoration of existing wetlands. Id. at 14 (stating that the "ability of the species to search for new locations gives great hope for the recovery of the species but only if that species has 'options' for establishing nesting locations."); see also (D.E. No. 52-5 at 60) (stating that "[m]aintenance/restoration of short hydroperiod wetlands restores historic [wood stork] nesting productivity and foraging habitat availability."). Thus, the Court finds that the Corps has created a program to preserve the wood stork in compliance with section 7(a)(1) of the ESA.

EXCERPT RE: ENVIRONMENTAL BASELINE.   It is undisputed that the FWS does not estimate the amount of short hydroperiod wetlands in the entire action area nor does it estimate the number of wetlands needed to sustain the wood storks; however, there is no requirement under the law that such data be included in the environmental baseline nor is there any indication that the FWS's failure to include such information was arbitrary, capricious, or an abuse of discretion. Under the APA, this Court gives substantial deference to the FWS's decisions as to "what evidence to find credible" and "drafting decisions like how much discussion to include on each topic, and how much data is necessary to fully address each issue," finding such decisions inadequate only where they are arbitrary, capricious, or an abuse of discretion. Sierra Club v. Van Antwerp, 526 F. 3d 1353, 1361 (11th Cir. 2008). Here, the FWS's failure to include the specific information noted by Plaintiffs does not meet this standard.  The Court, however, finds that the FWS did not adequately consider the other federal projects in their biological opinion. Plaintiffs argue that the FWS's discussion of the environmental baseline is arbitrary and capricious because the biological opinion fails to discuss the combined impacts of other federal projects in the action area including Saturnia Falls, Parklands, Cypress Run, and Bonita Beach Road. This Court agrees...

While the biological opinion does reference these other projects, see (D.E. No. 32-4, biological opinion at 2, 6, 107), there is no analysis of these projects or their impacts. "Simply reciting the activities and impacts that constitute the baseline and then separately addressing only the impacts of the particular agency action in isolation is not sufficient." Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 127-28 (D.D.C. 2001); see also Greenpeace v. Nat'l Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1149 (W.D. Wash. 2000) ("Although BiOp2 states that its conclusions are based on a 'cumulative effects analysis,' . . . and even contains a section titled 'Cumulative Effects,' . . . in fact this section contains no analysis whatsoever and is nothing more than a list of the fisheries regulated by the state of Alaska or granted by treaty to Native Americans. The section contains no explanation of how the various groundfish fisheries and fishery management measures interrelate and how the overall management regime may or may not affect Steller sea lions."). Thus, the Court finds that the analysis of the environmental baseline in the biological opinion was arbitrary and capricious with regard to the FWS's failure to adequately assess the other federal projects in their biological opinion.

EXCERPT RE: FISH PREY DENSITY.  The Court, however, does find that the FWS's calculation of fish prey density was arbitrary, capricious, and an abuse of discretion. In the biological opinion, the FWS calculated the fish prey density, or number of fish per square meter, per hydroperiod. The FWS performed this calculation by extrapolating the fish densities from the Trexler Study (D.E. No. 34-6) to the seven hydroperiods used by the FWS in this case. 13 The fish densities used in the Trexler Study and adopted by the FWS in their biological opinion were based on "throw-trap samples" or fish caught by use of a throw-trap. (D.E. No. 34-6 at 16). The Trexler Study states that these throw-traps were used to target small fish or fish less than 8 cm in length. 14 In the biological opinion, however, the FWS uses the data in the Trexler Study as if it represents all fish, regardless of their size, found in a specific hydroperiod. The FWS does not explain this discrepancy in the biological opinion. In addition, neither the Defendants nor the Intervenor has specifically responded to this discrepancy in their briefs. The Court finds that the FWS's unexplained reliance on this source of data which applies only to fish less than 8 cm as a basis for determining the density of all fish in the hydroperiods was arbitrary and capricious. See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins., 463 U.S. 29, 43 (1983) (stating that a "reviewing court should not attempt itself to make up for deficiencies . . [and cannot] 'supply a reasoned basis for the agency's action that the agency itself has not given.'") (quoting SEC v. Cheney Corp., 332 U.S. 194, 196 (1947)); Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, Inc., 462 U.S. 87, 105 (1983) (stating that the relevant inquiry in determining whether an agency decision should be overturned is whether there is "a rational connection between the facts found and the choice made.").