ORDER PURSUANT TO REMAND

WILLIAM M. HOEVELER, Senior District Judge.

THIS CAUSE comes before the Court to determine whether the United States Army Corps of Engineers complied with the Clean Water Act, 33 U.S.C. § 1251 (CWA), National Environmental Policy Act, 42 U.S.C. § 4321 (NEPA), and the Administrative Procedure Act, 5 U.S.C. § 706(APA), when it issued permits in 2002 to several limestone mining corporations for the discharge of dredged or fill material into wetlands in Miami-Dade County, pursuant to 33 U.S.C. § 1344 (§ 404 of the CWA).

In granting summary judgment for the Plaintiffs in 2006, the Court concluded that the Corps did not comply with its statutory and regulatory obligations. Sierra Club v. Flowers, 423 F.Supp.2d 1273 (S.D.Fla. 2006). After hearing argument from all sides regarding the appropriate remedy, the Court then issued a second order vacating the permits. Sierra Club v. Strock, 495 F.Supp.2d 1188 (S.D.Fla.2007). On appeal by the Intervenors, the Eleventh Circuit vacated, in part, the Court's summary judgment order,1 and vacated the additional order setting aside the permits. Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir.2008). The Court of Appeals remanded the case with instructions that, in resolving the summary judgment motions, the Court must apply the proper degree of deference to the Corps' permitting decision. Having freshly reviewed the administrative record and heard additional argument from the parties, the motions are now ripe for resolution as directed by the Court of Appeals. For the reasons explained below, the Plaintiffs' motion is GRANTED and the cross motions for summary judgment are DENIED.

BACKGROUND

The facts of this dispute have been addressed in detail on previous occasions. Briefly, this case is about a group of limestone mining corporations seeking permits under § 404 of the CWA to excavate limestone in a 54,000 acre area at the northwestern edge of Miami-Dade County and in areas near Everglades National Park. The area is primarily wetlands overlying the Biscayne Aquifer, the main source of drinking water for Miami-Dade County.

The Corps issued the permits in April 2002, see Record of Decision (ROD), found at Administrative Record 1028 (AR1028), for a period of ten years, authorizing approximately 5,400 acres of wetlands to be converted to mining pits. The Corps' approval relied on an Environmental Impact Statement (EIS), AR614, issued two years earlier, which addressed the miners' original proposal for fifty years of mining and a total of 14,300 acres of destroyed wetlands, AR65. That EIS was criticized by a number of agencies, organizations, and individuals, and, as a result, the Corps reduced the initial term of these permits to ten years, with the stated intention of issuing additional permits in the future.2 The Corps was asked by several agencies to further study the issue, i.e., prepare a Supplemental EIS (SEIS), prior to approval of the permits and again after the permits were issued, but the Corps elected to rely on the original EIS.

After the Court entered summary judgment for Plaintiffs in March 2006, the parties were granted an evidentiary hearing regarding what should occur while the Corps was preparing an SEIS and considering whether to reauthorize the permits, withdraw the permits, or take some other action. During that phase of the case, the Court received evidence (not contained in the administrative record) of the presence of benzene in the Biscayne Aquifer. The benzene was detected in water pumped from an area known as the Northwest Wellfield, located within the area of the mining authorized in these permits. This contamination resulted in several municipal wells in the Wellfield being shut down, an investigation by Miami-Dade County into the source, and criticism directed toward the miners for using chemically hazardous blasting compounds near the County's wells. After weighing the evidence, I entered a supplemental order in July 2007 which imposed the traditional APA remedy of vacating the agency action; I also concluded that the limestone mining had contributed to the benzene contamination. In response to the Intervenors' claims of substantial economic hardship in the event of a cessation of all mining under these permits, I stayed the effect of the ruling as to mining in locations other than those nearest to the wells. The Corps subsequently issued a draft SEIS3 and a "Second Three-year" review for the permits.

ANALYSIS

The CWA claims before the Court relate to whether the Corps was arbitrary or capricious in determining that no practicable alternatives existed. The NEPA claims are whether the EIS met NEPA's requirements and whether the Corps' determination that the ten year permits would have no significant effect (beyond the effects studied in the original EIS) was arbitrary, capricious, or an abuse of discretion.

Standard of review

A court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or without observance of procedure required by law." 5 U.S.C. § 706(2)(A).4 The pertinent APA standard of review is "exceedingly deferential," Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996), and a court must not "substitute its judgment for that of the agency," Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir.1996). However, the "failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct," and "courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself." Simmons v. Block, 782 F.2d 1545, 1549-1550 (11th Cir. 1986) (citations omitted) (affirming decision to set aside agency action as arbitrary and capricious where agency "followed neither course of action specified in the regulations"). Similarly, the Eleventh Circuit has held that it is unacceptable for an agency to "[i]nterpret[ ] a regulation in a manner that robs it of all meaning." Sierra Club v. Martin, 168 F.3d 1, 5-7(11th Cir.1999) (agency decision entitled to no deference when decision was "contrary to the clear language of [agency's forest plans] and the [National Forest Management Act]").

Statutory and regulatory guidance

In issuing 404(b) permits the Corps' decisionmaking authority is governed substantively by the CWA and procedurally by both the CWA and NEPA. The primary focus of the analysis that follows is the CWA, although I have annotated that analysis with selected provisions of NEPA.

The CWA imposes requirements on the Corps when deciding whether to issue permits for the discharge of dredged or fill material into wetlands.5 The CWA also requires that the Corps follow guidelines developed by the Environmental Protection Agency (EPA), 40 C.F.R. Part 230 (the Section 404(b)(1) Guidelines), and regulations adopted by the Corps, 33 C.F.R. Parts 320-329, when issuing such permits.

The 404(b)(1) Guidelines prohibit the Corps from issuing a 404(b) "dredge or fill" permit if the proposed project can be developed without disturbing wetlands, that is, if an environmentally preferable and practicable alternative exists. 40 C.F.R. 230.10(a). In addition to the 404(b)(1) Guidelines, the Corps' own CWA regulations also specifically require the Corps to consider practicable alternative locations and methods for accomplishing the project's objective, see 33 C.F.R. 320.4(a)(2)(ii). A practicable alternative is one that is "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. 230.10(a)(2).

The Corps also must follow the procedures imposed by NEPA. NEPA's purpose is to "promote efforts which will prevent or eliminate damage to the environment." 42 U.S.C. § 4321. The statute contains procedural directives to "insure that [high quality] environmental information is available to public officials and citizens before decisions are made and before actions are taken." 40 C.F.R. 1500.1(b). "Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA," id., and "Federal agencies must comply with both the letter and spirit of the statute," 40 C.F.R. 1500.1(a). The statute requires the preparation of an EIS, 42 U.S.C. § 4332(2)(c), which is governed by Corps regulations found at 33 C.F.R. 230.1 and Appendix B of 33 C.F.R. Part 325, and regulations promulgated by the Council on Environmental Quality (CEQ) (40 C.F.R. Part 1500). The EIS must study alternatives to the proposed action, 40 C.F.R. 1502.14. The alternatives analysis required by NEPA is similar to the alternatives analysis required by the CWA;6 both analyses depend upon a proper statement of the project's purpose.

I. The Clean Water Act

The 404(b)(1) Guidelines include a specific requirement that "practicable alternatives that do not involve [wetlands] are presumed to be available" if the activity for which the permit is sought "does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not `water dependent')." 40 C.F.R. 230.10(a)(3) (emphasis added). If the proposed activity is not water dependent, the permit applicant must rebut the presumption of environmentally preferable and practicable alternatives by clearly demonstrating the absence of such alternatives. Id.

A. Project purpose

The Corps' identification of the project purpose is essential to implementation of the CWA because the statement of the project's "basic purpose" determines whether the presumption of practicable alternatives applies, and thus whether the applicant has the burden of clearly demonstrating that there are no such alternatives. 40 C.F.R. 230.10(a)(3). See, e.g., Nat'l Wildlife Fed'n v. Whistler, 27 F.3d 1341, 1345 (8th Cir.1994) ("Central to evaluating practicable alternatives is the determination of a project's purpose."). A conclusion that the project's basic purpose "require[s] access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose," must be supported by the record. In this case, the Corps concluded that the project's basic purpose, limestone excavation, is water dependent. Plaintiffs have challenged that conclusion, and this Court must resolve the dispute by examining the record and any relevant authority to determine whether the Corps' decision was arbitrary or capricious.

B. Is the project's basic purpose water dependent?

The Corps stated in the ROD that the "basic purpose" of this project was "to extract limestone." AR1028 at 8. This decision is entitled to deference. Having established the project's basic purpose, the Corps then had to decide whether the activity is water dependent. 40 C.F.R. 230.10(a)(3).

The water dependency test prevents the Corps from approving environmentally harmful activities in wetlands if those activities might otherwise be relocated to upland locations. Permit applicants can rebut the presumption that environmentally preferable locations exist by clearly demonstrating that there are no practicable alternatives to the proposed activity. Here, the Corps concluded, without explanation, that "[t]he activity needs to be located in a special aquatic site to fulfill its basic purpose," AR1028 at 59.7

Neither the CWA nor its implementing regulations list examples of "water dependent" activities, nor does the definition of a project's purpose as "water dependent" receive much analysis in reported decisions. A statement of the Corps' standard operating procedures, referenced in a recent opinion, provides the following:

Army Corps of Engineers Standard Operating Procedures for the Regulatory Program (October 15, 1999), cited in Fla. Clean Water Network, Inc. v. Grosskruger, 587 F.Supp.2d 1236 (M.D.Fla.2008).8

In this case, the Corps first announced in the EIS, without any explanation, that "[b]y nature of the project, it involves work in wetlands, and no practicable alternative to working in wetlands exists," AR614 at 103. The Corps repeated that conclusion in the ROD: "[t]he activity needs to be located in a special aquatic site to fulfill its basic purpose." AR1028 at 59. Absent some explanation by the Corps, however, the Court is unable to defer to the Corps' unsupported conclusion that this limestone mining is water dependent,9 particularly because the Corps' conclusion as to these permits directly conflicts with the Corps' assessment in another permit issued for substantially similar limestone mining within months of the approval of these permits. In 2003, the Corps concluded that limestone excavation did not need to be located in a special aquatic site to fulfill its basic purpose of "develop[ing] a source for limerock" and approved a permit requested by Florida Rock — also a recipient of one of the permits at issue in this case — to mine limestone in Southwest Florida wetlands.10 That permit was the subject of the decision in Nat'l Wildlife Fed'n v. Norton, 332 F.Supp.2d 170, 186 n. 13 (D.D.C.2004); as noted by that court, it was "undisputed that this mining activity is not inherently water dependent," id. If limestone excavation is not inherently water dependent in one situation, then it is not inherently water dependent in another.

The Corps is free, of course, to exercise its discretion and arrive at various conclusions, or change its position,11 but a reviewing court necessarily examines carefully the Corps' decision to take diametrically opposed positions as to two projects with nearly identical parameters.12

The Corps' water dependency conclusion in this case is also at odds with its reported decisions as to what constitutes water dependent activities in other cases. As stated in the Corps' standard operating procedures, noted above, construction of a dam, marina, mooring facility, or dock necessarily involve bodies of water. Reported decisions provide additional examples: Nat'l Wildlife Fed'n v. Whistler, 27 F.3d 1341, 1345-46 (8th Cir.1994) (providing boat access to a housing development); Korteweg v. United States Army Corps of Eng'rs, 650 F.Supp. 603, 605 (D.Conn. 1986) (boat slips for residential development); Friends of the Earth v. Hintz, 800 F.2d 822, 835 (9th Cir.1986) (constructing a sorting yard for logs waiting to be transported by ocean cargo carriers).

On the other hand, the Corps has concluded, and reviewing courts have agreed, that other activities are not water dependent: Shoreline Assoc. v. Marsh, 555 F.Supp. 169 (D.Md.1983), aff'd. 725 F.2d 677 (4th Cir.1984) (construction of townhouse community); Great Rivers Habitat Alliance v. United States Army Corps of Eng'rs, 437 F.Supp.2d 1019, 1028-30 (E.D.Mo.2006) (construction of flood control levee and road improvements for a mixed-use development); Northwest Bypass Group v. United States Army Corps of Eng'rs, 552 F.Supp.2d 97, 108-109 (D.N.H.2008) (construction of roadway), and Hoosier Envt'l. Council v. United States DOT, 2007 WL 4302642, 2007 U.S. Dist. LEXIS 90840 (S.D.Ind.2007) (highways); Kentuckians for the Commonwealth v. Rivenburgh, 206 F.Supp.2d 782, 804 (S.D.W.Va.2002) (surface coal mining); and Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir.2008) (gold mining). The Court's review of the Corps' conclusions in these cases is illuminating, and provides context in considering the Corps' analysis in this case.

Nothing in the administrative record indicates that the basic purpose of this project, limestone excavation, requires siting within wetlands. Nor do any of the Corps' prior positions suggest that limestone excavation is a water dependent activity.13 The inconsistency of the Corps' conclusion in light of the above referenced sources, particularly with respect to the Corps' conclusion about the limestone mining at issue in Nat'l Wildlife Fed'n v. Norton, 332 F.Supp.2d 170, forces the Court to conclude that the Corps' decision that the basic purpose of this project was water dependent was arbitrary and capricious.

C. Practicable alternatives

The Corps has a duty to independently evaluate practicable alternatives to the proposed project "if such alternatives would have less adverse impact on the aquatic ecosystem [and no] other significant adverse environmental consequences." 40 C.F.R. 230.10(a). See also, Fund for Animals, Inc. v. Rice, 85 F.3d 535, 543.14 The Corps has this duty regardless of whether the regulatory presumption, discussed above, is applied. The Corps "conducts its own independent evaluation [of practicable alternatives]," id. and, in doing so, the Corps must "exercise independent judgment in defining the purpose and need for the project from both the applicant's and the public's perspective," 33 C.F.R. Part 325, App. B(9)(b)(4).15 The Corps also must "document in the record the . . . independent evaluation of the information [submitted by the applicant for the EIS] and its accuracy, as required by [NEPA CEQ regulations] 40 C.F.R. 1506.5(a)." 33 C.F.R. Part 235 App. B(8)(f)(2).16 For example, courts have criticized the Corps for failing to exercise independent judgment when evaluating the applicant's statement of purpose for the project, see, e.g., Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 669 (7th Cir.1997) (Corps' "wholesale acceptance of [the permit applicant's] definition of purpose" did not comply with NEPA).17

The Corps analyzes practicable alternatives in light of a project's "overall purpose," which is more particularized to the applicant's project than is the basic purpose, and reflects the various objectives the applicant is trying to achieve. However, "[a]n applicant cannot define a project in order to preclude the existence of any alternative sites and thus make what is practicable appear impracticable." Sylvester v. United States Army Corps of Eng'rs, 882 F.2d 407, 409 (9th Cir.1989).

The Corps determined, as to these permits, that the "overall project purpose is to provide construction-grade limestone from Miami-Dade County." AR1028 at 8.18 In considering all of the mining permit applicants collectively, as the miners requested, the Corps' practicable alternatives analysis only sought to identify potential alternative sites which could support a large scale limestone mining operation.19 The draft EIS stated, without any supporting analysis, that there is a "difficulty of developing a foreign supply of rock to equal future demands in the next 15 years," AR605; the Fish and Wildlife Service (FWS) and Everglades National Park criticized that document for not answering the question of whether there were alternative sources of rock, foreign or domestic, that could reduce the need to mine this quantity of limestone in these wetlands. Prior to publication of the EIS, the Corps received relevant information which specifically identified potential alternative sources for limestone products:

AR558 at 5 (public comments submitted March 1998).20

In response to these federal agency concerns and public comments, the Corps obtained a report from the permit applicants, and published that report as Appendix I of the EIS, AR614 at 923 ("Analysis of the `Practicability' of Non-Lake Belt Alternative Sources to Supply Florida's Demand for Basic Construction Materials," December 1999). The report, submitted by Paul Larsen on behalf of the mining interests, AR583, was accepted by the Corps without critical review or verification21 despite the fact that its author's bias had been credibly questioned.22 Moreover, the report's evaluation of the environmental consequences of mining at the alternative sites was explicitly based on only one source of data: "interviews with the individuals who secured environmental permits for each mine [i.e., the mining industry]." AR585.

There is no indication that the Corps independently investigated Larsen's claims or the alternative sources which were identified by others — indeed, the Corps' EIS fails to identify with specificity any potential replacement sources of limestone. Instead, the Corps described the Larsen report as the Corps' "complete analysis of [alternative sources]," AR614 at 906, and adopted the report — including the report's conclusion that practicable alternatives did not exist — as the Corps' own analysis.23 The Corps made no effort, or at least the record is silent as to any such effort, to independently evaluate any of the claims in Larsen's report relating to the lack of practicable alternatives.24 It is not this Court's responsibility to determine whether the Larsen report is accurate or worthy of reliance, but based on this Court's review of the record, the Corps has not articulated a reasoned explanation for its adoption of the report and its conclusions.

Even after the EIS was published, the record indicates that the Corps did nothing else to address the question of practicable alternatives. Not a single alternative location is identified by name in the ROD. The ROD included a brief summary of the alternatives discussion in the EIS:

AR1028 at 38-39 (emphasis added). The ROD also repeats the Larsen report's conclusions: "Rock product is only available in limited portions of the State. Slightly over 40% of the rock used in Florida comes from the Lake Belt. . . . Any change in the cost or availability will have wide repercussions across the state," AR1028 at 38, and "other locations would result in impacts to other ecosystems, and probably to a greater extent than in the Everglades since the area of mining would have to be larger and the other ecosystems are smaller than even the remaining extent of the Everglades," AR1028 at 84. These summary statements do not reveal that the Corps conducted an independent review of whether practicable alternatives existed, as required by 33 C.F.R. Part 325, App. B(9)(b)(4), and Fund for Animals, Inc. v. Rice, 85 F.3d at 543.

The record before me in this case fails to show that the Corps exercised independent judgment in rejecting all practicable alternatives to this proposed mining, particularly when compared to administrative records reviewed favorably by other courts. Noting the Corps' duty to conduct its own evaluation, the court in Fund for Animals, Inc. v. Rice, 85 F.3d 535, 543, upheld the Corps' permitting decision where the Corps independently evaluated the applicant's analysis of several alternative sites before determining that there were no practicable alternatives. Id. at 543. The court in Nat'l Wildlife Fed'n v. Whistler, 27 F.3d at 1345-46, approved the Corps' "thorough review" of the applicant's characterization of the project, noting that the Corps had support for its definition of the project purpose as encompassing two severable projects: the non-water-dependent construction of a housing development and the water dependent provision of boat access to the development.25 In Friends of the Earth, Inc. v. Hintz, 800 F.2d 822, the Corps had "exhaustively studied" the permit applicant's information, id. at 835, and engaged in a "reasonably thorough examination of the water dependency issue, and reached a rational conclusion," id. at 831, before approving the permit. "Certainly, we would not condone blind acceptance by the Corps of [an applicant's] study of alternative sites." id. at 836. The Corps' decision to issue a 404(b) permit was upheld in Great Rivers, 437 F.Supp.2d at 1028, because the Corps had required the permit applicant to undertake a "formal practicable alternatives analysis" and received public comments and responses thereto; the Corps also "considered and rejected proposed practicable alternative sites . . . and articulated reasons for its decision as to practicable alternatives." Id. at 1030. Also, in Alliance for Legal Action v. United States Army Corps of Eng'rs, 314 F.Supp.2d 534 (M.D.N.C.2004), the court upheld the Corps' determination that the basic purpose of a proposed air cargo hub was not water dependent, finding that the record demonstrated that the "Corps did not unthinkingly adopt the EIS." Id. at 551.

Based on the record before me, I find that the Corps' conclusory statement that "there are no practicable nor less damaging alternatives which would satisfy the project's overall purpose," AR1028 at 59, and the lack of justification in the record, does not demonstrate that the Corps independently evaluated the question of practicable alternatives as required by 33 C.F.R. 325 App. B(9)(b)(4). "Alternatives might fail abjectly on economic grounds. But the Corps and, more important, the public cannot know what the facts are until the Corps has tested its presumption." Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 669-670 (7th Cir. 1997) (vacating permit because Corps failed to evaluate entire category of reasonable alternatives for water supply). Also, the Corps' reliance on the Larsen report without independent evaluation of its claims does not comply with the requirements of NEPA, specifically 40 C.F.R. 1506.5(a), and provides further support for my conclusion that the Corps was arbitrary and capricious in concluding that there are no practicable alternatives to this mining.

In summary, after a deferential review of the Corps' unexplained decision that the activity proposed by these applicants required siting within wetlands, I find that the Corps' decision that this mining was water dependent was arbitrary and capricious, and plainly inconsistent with 40 C.F.R. 230.10(a). It is clear from the record that the Corps uncritically accepted the miners' assertions that limestone mining required siting in these specific wet-lands, in the face of possible alternatives that were presented to the agency. By not applying the presumption that environmentally preferable and practicable alternatives to this limestone mining were available, the permit applicants were excused from "clearly" demonstrating the absence of practicable alternatives. This is not the process anticipated and mandated by 40 C.F.R. 230.10(a)(3), and this failure by the Corps constitutes arbitrary and capricious conduct. See, e.g., Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986); Sierra Club v. Martin, 168 F.3d 1, 7 (11th Cir.1999).26 Further, the Corps' decision to summarily reject all alternative locations for this mining was based on the Corps' uncritical acceptance of a single report from the permit applicants, as to which credible objections had been raised.27

Insofar as the CWA practicable alternatives analysis is concerned, the Corps' decision to grant these permits was arbitrary and capricious. Plaintiffs are entitled to summary judgment. Moreover, the conclusions reached by the Corps did not comply with the procedural safeguards of the CWA and NEPA regulations which control the Corps' activities, as noted above, and on that separate and independent basis are arbitrary and capricious. Plaintiffs are entitled to summary judgment.

II. Analysis of the "no action" alternative pursuant to NEPA

Apart from the analysis required under the CWA as to practicable alternative locations for the proposed limestone mining, NEPA also directs the Corps to evaluate alternatives which include, e.g., taking "no action" by denying the permits, or any reasonable alternatives, in order to "sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. 1502.14. The EIS must demonstrate that the Corps complied with NEPA's requirements to "[rjigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. 1502.14(a).28

The EIS issued in 2000 summarily dismissed the "no action" alternative of continuing to review permit requests case by case because of a "strong consensus among the environmental resources agencies and groups that the current wetland mitigation requirements [resulting from prior approval of individual permits] do not adequately compensate for the resulting wetland impacts." AR614 at 71.

The "no action" alternative of revoking the then-existing permits (and denying any future mining permits) was dismissed because of "the legal issues arising from" such action by the Corps, and the "economic hardships imposed on the mining industry." AR614 at 71. Similarly, the ROD dismissed the "no action" alternative:

AR1028 at 37. Based on the Corps' statements quoted above, it is clear that the Corps' decision to issue the permits was at least in part based on the Corps' belief that financial costs to the United States, i.e., from inverse condemnation actions by the miners (which may or may not succeed), might result from any prohibitions or limits on the proposed limestone mining.

The Corps apparently thought that the risk of this outcome was unacceptable, and therefore narrowed the universe of possible alternatives to those that would allow the miners to mine their property. After rejecting the "no action" alternatives, the Corps concluded that: "[t]he proposed 10-year mining footprint is the least damaging to the aquatic ecosystem in that it is much smaller than the 50-year total plan (which itself minimizes impact to wetlands compared to other alternatives described in the fifty year analysis)." AR1028 at 36-40, 55. As the Corps presently is preparing an SEIS, and in light of the Court's finding, discussed above, that the Corps' analysis of alternatives under the CWA was arbitrary and capricious, the Court need not further address the merits of the Corps' "no action" alternatives analysis at this time.

III. Analysis of impacts pursuant to the CWA and NEPA

NEPA has been interpreted to require that courts "ensure that the agency took a `hard look' at the environmental consequences of the project," City of Oxford v. F.A.A., 428 F.3d 1346, 1352 (11th Cir.2005). The CWA also "requires that an environmental concern . . . be considered at an early enough stage in the policymaking process to affect the agency decision," Sierra Club v. United States Army Corps of Eng'rs, 772 F.2d 1043, 1051 (2d Cir.1985). The Corps' CWA regulations require that analysis of a proposed activity begin with the presumption that the "unnecessary alteration or destruction of [wetlands] should be discouraged as contrary to the public interest," 33 C.F.R. 320.4(b)(1), and impacts to those wetlands which perform functions "important to the public interest" should be avoided, 33 C.F.R. 320.4(b)(2). The 404(b) Guidelines also provide that the "guiding principle should be that degradation or destruction of special sites may represent an irreversible loss of valuable aquatic resources" and "is considered to be among the most severe environmental impacts." 40 C.F.R. 230.1(d).29

Permits should not issue under the CWA for activities that will cause or contribute to "significant degradation" of the wetlands at issue, 40 C.F.R. 230.10(c), [e.g., activities which might cause significantly adverse effects on municipal water supplies, wildlife habitat, etc., 40 C.F.R. 230.10(c)(1), (3)]. The statute specifically provides that unacceptable adverse effects on municipal water supplies are sufficient grounds for denial of a 404(b) permit, 33 U.S.C. § 1344(c), and pertinent regulations direct that the Corps consider water quality and water supply issues as part of its "Public Interest Review," 33 C.F.R. 320.4(a)(1).

During the preparation of the EIS and prior to issuance of the ROD, the Corps was urged by several local agencies to address the potential adverse effects on Miami-Dade County's municipal water supply from the proposed limestone mining activity, and the costs associated with mitigating those effects. The Court must decide whether the Corps considered, as required by the CWA and its implementing regulations, as well as NEPA, the significant adverse effects on municipal water supplies (which were a reasonably foreseeable result of this mining).

The county protects the quality of the Northwest Wellfield by enforcing protection zones around the production wells, based on the theoretical distance a pollutant might travel toward a production well during a specific number of days. AR1175, p. 6, 9. Limestone mining, which removes the rock and leaves pits which fill with water, affects the effectiveness of those protection zones:

AR1176 ("Description and Analysis of Full-Scale Tracer Trials Conducted at the Northwest Wellfield, Miami-Dade County Florida," Miami-Dade County environmental department report, August 2000).

One of the County's most important concerns is that the Aquifer not be subject to reclassification as "groundwater under the direct influence" of surface water-such a reclassification (from the present classification as "groundwater") would require a costly modification of the County's water treatment facilities. AR1175 (Northwest Wellfield Watershed Protection Plan, prepared for the State water agency by Miami-Dade County's environmental department, August 16, 2000). The County's municipal water department criticized the draft EIS as follows:

AR608 (letter from Director, Miami-Dade Water and Sewer Department, to Corps, May 28, 1999).30 Although the final EIS reported that the excavation of limestone would convert a large portion of the Aquifer to "surface waters," AR614 at 78, that Miami-Dade County's wellfield protection plan's buffer zone "may be inadequate protection against [potentially deadly] surface water contaminants," AR614 at 69-70, and that the proposed mining plan "may compromise the existing wellfield protection program," AR614 at 88, nowhere does the EIS mention the potential $235 million cost of upgrading the water treatment plants.31

The EIS identifies three mitigation measures to protect the wellfields: the construction of a berm around the larger mining area to prevent direct entry of surface water runoff, the prohibition of future development, and the use of land use regulations to prevent urban runoff into the wellfield, AR614 at 82-83. The EIS does not include mitigation measures to address the risk of the Aquifer becoming contaminated by the mining itself, and is silent as to the estimated cost for upgrades to the County's water treatment systems which would be necessary if the Aquifer is reclassified as groundwater under the direct influence of surface water.

NEPA and its regulations impose a duty on the Corps, when evaluating "the environmental impact of the proposed action," 42 U.S.C. § 4332(2)(C)(i), to provide all available information that is "essential to a reasoned choice among alternatives," 40 C.F.R. 1502.22. By failing to include in the EIS the County's estimates of the costs of the potential upgrades to the water treatment system, or any analysis by the Corps as to whether such upgrades were reasonably foreseeable, the Corps did not comply with NEPA's regulations.

After reviewing the EIS and the Corps' Public Notice of the intent to issue the permits, the County advised the Corps that:

AR654 (letter from Miami-Dade County to Corps, July 19, 2000); see also AR656 (letter from Miami-Dade municipal water department to Corps, July 21, 2000). Despite these concerns, summarized in the ROD in a section reporting on comments received, AR1028 at 15, 33, the Corps never addresses the County's estimated costs of upgrading the water treatment facilities in the Corps' analysis of the foreseeable adverse effects of the proposed mining.32

In the alternatives analysis, the ROD includes the statement that "[i]f the wellfield is reclassified to [ground water under the influence of surface water] existing water treatment plants would have to be upgraded," AR1028 at 54, without mentioning the estimated costs of the upgrade — a secondary or indirect effect of the proposed mining activity. Although the Corps identifies the potential contamination as a secondary effect, "[t]he removal of the rock and muck increase the potential that contaminants from runoff could enter the aquifer and reach the public wellfield," it does not discuss mitigation of those adverse environmental impacts, 40 C.F.R. 1502.16, instead claiming that the risk will be reduced by "additional restrictions," AR1028 at 59.

The Corps' evaluation of the 404(b)(1) Guidelines concludes that "there are no factors . . . that would cause an adverse water quality impact," AR1028 at 57,33 and while the Corps finds that there is a "potential for introduction of contaminants from accidental spills during mining operations or from runoff from workpads or other adjacent land uses," AR1028 at 57, that risk will be minimized as "mining will not occur [in some locations near the wellfield]." AR1028 at 73.34 Failing to mention in the evaluation of the Guidelines that if the wellfield is reclassified as a result of the mining activity the public costs of the upgrades would be approximately $235-$250 million indicates that the Corps failed to account for those costs in its analysis of whether these permits would have a significant effect on the environment. "NEPA imposes procedural requirements before decisions are made in order to ensure that those decisions take environmental consequences into account." Wilderness Watch v. Mainella, 375 F.3d 1085, 1096 (11th Cir.2004). Thus, the Corps' decision, announced in the ROD, that these permits would have no significant effects other than those studied in the EIS was arbitrary and capricious because the EIS itself did not meet NEPA's procedural requirements as to the study of indirect effects and their significance. 40 C.F.R. 1502.16,1508.8.35

CONCLUSION

As discussed above, I have determined that the Corps acted arbitrarily and capriciously in concluding that this limestone excavation is water dependent and that no practicable alternatives existed. The Corps failed to articulate any explanation for its determination that the basic purpose of this project was water dependent, and failed to document any "analysis" of the practicable alternatives to this proposed mining, in violation of both the CWA and NEPA. Moreover, by failing to hold these limestone corporations to the test of "clearly demonstrating" the absence of practicable alternatives, the Corps failed to comply with 40 C.F.R. 230.10(a)(3).

The EIS also failed to meet NEPA's requirements because the Corps adopted challenged data and conclusions submitted by the permit applicants without independent evaluation, and omitted pertinent information related to the anticipated cost of upgrades to the water treatment plants. Based on the record before the Court, the Corps was arbitrary and capricious in determining that the ten year permits would have no significant effect other than identified in the EIS, in part because the EIS itself was insufficient to meet NEPA's demands.

The Corps failed to comply with statutory and regulatory directives and was arbitrary and capricious in its decision to issue the permits. The Corps' decision to issue these permits in 2002 must be set aside. The Court's decision today, and in the past, has been based on a full review of the record before me, and my understanding of the law. I have approached this case, as any other, with the intent to fulfill my commission as a judge fairly and fully, to the best of my ability.

Plaintiffs' motions for summary judgment are GRANTED as to Counts I and V, and the motions filed by the Corps and Defendants-Intervenors are DENIED. The Court hereby enters judgment in favor of Plaintiffs and against the Corps.36 This case is closed.