Case 1:21-cv-01029-DLF Document 1 Filed 04/14/21 Page 1 of 68
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`THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`AMERICAN RIVERS
`1101 14th St. NW, Suite 1400
`Washington, DC 20005
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`NATIONAL AUDUBON SOCIETY
`225 Varick St.
`New York, NY 10014
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`SIERRA CLUB
`National Headquarters
`2101 Webster St., Suite 1300
`Oakland, CA 94612
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`HEALTHY GULF
`935 Gravier St., Suite 700
`New Orleans, LA 70112
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`Plaintiffs,
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`U.S. ARMY CORPS OF ENGINEERS
`441 G Street NW
`Washington, DC 20314-1000
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`U.S. FISH and WILDLIFE SERVICE
`1849 C Street, NW
`Washington, DC 20240
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`Case No.
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`v.
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`Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 1:21-cv-01029-DLF Document 1 Filed 04/14/21 Page 2 of 68
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`Plaintiffs American Rivers, National Audubon Society, Sierra Club, and Healthy Gulf
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`(collectively the “Conservation Organizations”) file this Complaint for Declaratory and
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`Injunctive Relief against the U.S. Army Corps of Engineers (“Corps”) and U.S. Fish and
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`Wildlife Service (“Service”), and allege as follows:
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`INTRODUCTION
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`1.
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`This case challenges the Corps’ illegal decision to approve a massive pumping plant that
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`would drain some of the Nation’s richest wetland and aquatic resources in a sparsely populated
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`area of Mississippi. The late Senator John McCain described this agricultural drainage project as
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`“one of the worst projects ever conceived by Congress,” while the Environmental Protection
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`Agency (“EPA”) decisively vetoed the pumps during the George W. Bush Administration due to
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`the unacceptable adverse impacts on wildlife and fisheries.
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`2.
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`Yet, the Corps hastily approved the construction and operation of the same vetoed
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`pumping plant during the last days of the Trump Administration, relying on the same flawed
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`analysis rejected by EPA in 2008 as contrary to the facts and law. By repeating those same
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`errors, the Corps severely underestimated the pumps’ devastating impacts and failed to inform
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`the public about the true costs of the project. The Corps also refused to consider viable
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`alternatives to the pumps that would provide prompt, effective, and environmentally sound flood
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`relief to communities. The Corps’ uninformed decision contravenes core requirements of the
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`Clean Water Act, Water Resources Development Act (“WRDA”), National Environmental
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`Policy Act (“NEPA”) and Endangered Species Act.
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`3.
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`The Yazoo Backwater Area contains one of the few remaining intact bottomland
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`hardwood forested wetlands in the Lower Mississippi River Alluvial Valley. Periodic flooding
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`sustains vital wetland habitat for a highly productive floodplain fishery and globally significant
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`migratory bird foraging grounds. In fact, 60 percent of all North American bird species depend
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`upon the Mississippi River basin’s habitats, including 40 percent of all waterfowl and shorebirds
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`that migrate along the Mississippi River Flyway. The Yazoo Backwater Area provides
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`hemispherically significant habitat to more than 28 million migrating birds annually.
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`4.
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`EPA safeguarded this ecosystem in 2008 by exercising its authority under Section 404(c)
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`of the Clean Water Act to veto the construction and operation of a 14,000 cubic feet per second
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`(cfs) pumping plant (hereinafter the “Yazoo Pumps Project”) proposed by the Corps, and each
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`alternative plan considered by the Corps that included a pumping plant. The Veto ensures
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`against the “unacceptable adverse effects” of any variation of the pumps that impacts more than
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`28,400 acres of wetlands in an area that provides vital habitat to more than 450 species of birds,
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`fish, and wildlife.
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`5.
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`EPA has issued only 13 Section 404(c) vetoes since the Clean Water Act was enacted in
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`1972, out of approximately 2 million activities approved by the Corps during that timeframe.
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`EPA has never revoked a veto.
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`6.
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`EPA and the public repeatedly urged the Corps to consider alternatives to the prohibited
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`pumping plant, including modern approaches to floodplain management and flood risk reduction.
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`7.
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`The Corps nevertheless insisted on approving the long-vetoed and outdated Yazoo
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`pumps, notwithstanding the Veto and without consideration of any alternatives. The Corps
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`based its decision on a Final Supplemental Environmental Impact Statement prepared in 2020
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`(hereinafter the “2020 FSEIS”) that categorically refused to consider “any new alternatives” and
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`instead insisted on the same pumping plant at a nearby location with the exact same key features
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`as the vetoed Yazoo Pumps Project (hereinafter the “Yazoo Pumps Redo”).
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`8.
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`The Yazoo Pumps Redo plainly violates the Veto. It includes the same 14,000 cfs
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`pumping plant whose construction would require the discharge of fill material into the same
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`wetlands prohibited by the Veto, and whose operation would cause unacceptable adverse effects
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`far in excess of the amount prohibited by the Veto. The Corps cannot unilaterally override the
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`Veto, which EPA has not lawfully revoked.
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`9.
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`The Corps refused to consider any alternatives to the pumps, despite being presented with
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`a proposed alternative at the outset of the public process that could be implemented quickly
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`through existing federal programs to provide prompt, effective, sustainable, and environmentally
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`sound relief to communities in the Yazoo Backwater Area. The 2020 FSEIS did not even
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`mention this alternative, known as the Resilience Alternative, and instead focused solely on
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`approving the pumps, even though new data shows that the pumps would not prevent flooding in
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`the vast majority of the Yazoo Backwater Area, would increase flood risks for communities, and
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`would likely cost taxpayers far in excess of $450 million. As a result, the Corps overlooked
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`reasonable alternatives in violation of NEPA and failed to demonstrate that the Yazoo Pumps
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`Redo is the least environmentally damaging practicable alternative—a threshold requirement of
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`the Clean Water Act.
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`10.
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`The Corps also blinded itself and the public to the significant and unacceptable adverse
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`impacts of the Yazoo Pumps Redo by relying on the same unduly constrained analysis rejected
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`by EPA in the Veto. By repeating this error, the 2020 FSEIS excludes consideration of the
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`pumps’ impacts on at least 96,139 acres of wetlands—an area over twice the size of Washington
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`D.C.—and thereby severely underestimates the pumps’ significant adverse impacts on vital
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`wetland functions. Even the severe underestimate of wetland impacts in the 2020 FSEIS shows
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`that the Yazoo Pumps Redo would cause significant and unacceptable degradation to wetlands
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`and their associated functions, in violation of the Clean Water Act.
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`11.
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`The Corps also failed to consider the significant risk to downstream and Yazoo
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`Backwater Area communities created by the pumps, which would discharge up to 9 billion
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`gallons of water per day into the Yazoo River when the River is at flood stage. The Corps
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`instead rejected the notion of any such risk by referencing a summary report based on a model
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`that an expert review deemed too flawed to provide any type of reliable analysis. Compounding
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`this error, the Corps misrepresented the results of that model and failed to inform the public
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`about the significant risks to downstream communities, as well as the risk of overtopping the
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`Yazoo Backwater levee, which would flood the Yazoo Backwater Area.
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`12.
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`The Corps’ incomplete analysis, in turn, infected its conceptual proposal to mitigate the
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`pumps’ impacts. The Corps did not provide any mitigation to offset the pumps’ significant
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`adverse impacts on thousands of acres of wetlands excluded from the 2020 FSEIS. The Corps
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`also failed to provide a specific and detailed mitigation plan, despite its obligation to do so.
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`Instead, the Corps relied on a hypothetical, wait-and-see approach that plainly violates the Clean
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`Water Act and WRDA and is destined to fail. In fact, the Corps’ own data show that its
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`conceptual mitigation proposal will not offset even the severe underestimate of wetland impacts
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`identified in the 2020 FSEIS. EPA concluded that the Corps’ mitigation was so inadequate that
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`it would “preclude a private party from receiving a Section 404 permit” under the Clean Water
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`Act.
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`13.
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`The Corps’ haste to approve the pumps was so great that it did not respond to more than
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`50,500 public comment letters opposing the project, including technical comments submitted by
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`citizens and scientists detailing the flaws in the 2020 Draft SEIS. The Corps also failed to carry
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`out the mandatory independent external peer review process imposed by Congress as a safeguard
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`against uninformed decision-making. And the Corps prematurely terminated the requisite
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`consultation with the Service, and thereby failed to ensure the project would not jeopardize
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`federally threatened and endangered species protected by the Endangered Species Act. The
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`Service, in turn, violated its obligation to reinitate formal consultation in the face of the Corps’
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`recalcitrance and new information revealing adverse impacts to endangered species.
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`14.
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`The Conservation Organizations seek vacatur of the Corps’ decision and 2020 FSEIS,
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`along with appropriate declaratory and injunctive relief under the Administrative Procedure Act
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`(“APA”), because the Corps’ decision is arbitrary, capricious, an abuse of discretion, and not in
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`accordance with law.
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`JURISDICTION AND VENUE
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`15.
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`This action arises under the Clean Water Act, NEPA, WRDA, Endangered Species Act,
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`and APA, 5 U.S.C. §§ 702–06. This Court has jurisdiction over the parties and subject matter of
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`this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. §§ 2201-02
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`(declaratory judgment).
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`16.
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`Venue is proper in the District of Columbia under 28 U.S.C. § 1391 because the lead
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`plaintiff, American Rivers, resides in the District of Columbia and a substantial part of the events
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`giving rise to the claims occurred within the District of Columbia.
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`17.
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`This case is related to the pending lawsuit in the District of Columbia captioned
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`American Rivers v. U.S. Environmental Protection Agency, No. 1:21-cv-00097-DLF (Jan. 12,
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`2021).
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`Plaintiffs
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`PARTIES
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`American Rivers is a national non-profit organization headquartered in Washington D.C.
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`I.
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`18.
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`whose mission is to protect wild rivers, restore damaged rivers, and conserve clean water for
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`people and nature. Since 1973, American Rivers has protected and restored more than 150,000
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`miles of rivers through advocacy efforts, on-the-ground projects, and its annual America’s Most
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`Endangered Rivers campaign, which highlights and advocates for rivers that are confronted by
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`imminent decisions that will determine the health of the rivers’ futures. Since 1995, American
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`Rivers has advocated against the Corps’ proposal to construct and operate the Yazoo Pumps
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`Project because of its significant and unacceptable impacts on wetlands, fish and wildlife, water
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`quality, and downstream flooding. Construction and operation of the proposed 14,000 cfs
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`pumping plant would cause large-scale, widespread degradation of the Yazoo Backwater Area,
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`harming the interests of American Rivers and its members who routinely visit this area to canoe,
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`birdwatch, fish, hunt, and otherwise enjoy some of the Nation’s richest fisheries, wildlife habitat,
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`and bottomland hardwood forested wetlands.
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`19.
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`The National Audubon Society (“Audubon”) is a non-profit conservation organization
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`established in 1905 that works to protect birds and the places they need throughout the
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`Americas. Guided by the belief that where birds thrive people prosper, Audubon engages its
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`network of more than 1.8 million members, state programs, nature centers, and chapters from
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`around the country. Audubon has long regarded the Lower Mississippi River Delta and the
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`Yazoo Backwater Area as a globally significant ecoregion that is vital to the overall ecological
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`health of the Mississippi Flyway. Audubon members and supporters were instrumental in
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`securing EPA’s veto of the Yazoo Pumps Project to protect these rich habitats, and safeguarding
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`this decision is a significant priority for Audubon. Audubon is a leading voice in advocating for
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`an alternative strategy to the Pumps that would provide immediate, effective, and affordable
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`flood relief recovery and long-term protections for birds and communities that depend on the
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`Mississippi Flyway. Audubon’s members frequent the Yazoo Backwater Area to enjoy its many
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`recreational opportunities, such as birdwatching, hiking, paddling, and photography, and to
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`conduct community science projects; these activities would be severely impacted by the
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`proposed pumping plant project.
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`20.
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`The Sierra Club is a national non-profit organization that was established in 1892 and has
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`3.8 million members. Sierra Club’s mission is to explore, enjoy, and protect the wild places of
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`the earth; to practice and promote responsible use of the earth’s ecosystems and resources; and to
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`educate and encourage the public to protect natural resources. Sierra Club has long advocated
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`against the Corps’ attempt to construct and operate a pumping plant in the Yazoo Backwater
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`Area because of the unacceptable adverse impacts on fish and wildlife and water quality.
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`Instead, Sierra Club has supported non-structural alternatives that would provide marginalized
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`communities with equitable, just flood relief and long-term protections. This advocacy has
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`included public education, the dissemination of issue papers, involvement in public comment
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`periods, and appearances at public hearings. Sierra Club’s members have a long-standing
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`connection to the Yazoo Backwater Area, which they have used for outdoor recreation, such as
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`hiking, paddling, and wildlife watching. The Yazoo Pumps Redo would significantly impair
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`their members’ enjoyment of this special, unique place while failing to deliver any meaningful
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`flood relief for communities.
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`21.
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`Healthy Gulf is a twenty-five year old environmental nonprofit organization focused on
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`the health of the Gulf of Mexico, its wetlands and waters, and the communities dependent upon
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`them. The organization empowers people to protect and restore the natural resources of the Gulf
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`of Mexico region, often assuming a watchdog role. Formerly titled Gulf Restoration Network,
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`the organization commented on the Yazoo Pumps Project, and engaged in organizing efforts to
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`protect wetlands there. It advocated against filling and degrading wetlands to construct and
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`operate a pumping plant, and proposed instead non-structural flood control alternatives less
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`disruptive to wetland habitats, soils, streams and wildlife in the Yazoo Backwater Area. Healthy
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`Gulf’s members frequently visit the Yazoo Backwater Area to enjoy its ecological richness and
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`biodiversity through activities such as hiking, paddling, and birdwatching, all of which would be
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`adversely impacted by the proposed pumping plant.
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`22.
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`The Conservation Organizations have long opposed the Corps’ attempts to construct and
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`operate a massive pumping plant in the Yazoo Backwater Area due to the unacceptable adverse
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`effects on some of the Nation’s most valuable wetlands, wildlife, and fishery resources. The
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`Conservation Organizations also oppose the long-vetoed pumps project because it could create
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`significant flood risks for downstream communities and the Yazoo Backwater Area—concerns
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`raised by both the conservation community and EPA—without delivering the purported flood
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`damage reduction benefits claimed by the Corps.
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`23.
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`The Conservation Organizations and EPA have instead advocated for non-structural and
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`natural infrastructure solutions—including such things as conservation and flood easements,
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`wetland restoration, flood proofing or elevation of structures, purchasing flood-prone properties,
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`and voluntary relocations—to reduce flood risks and increase community resilience in the Yazoo
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`Backwater Area.
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`24.
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`The Conservation Organizations provided the Corps and EPA with a detailed alternative
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`proposal (known as the “Resilience Alternative”) at the outset of the Corps’ public process that
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`includes a suite of proven, low-cost, natural infrastructure and non-structural measures that
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`would provide prompt, effective, sustainable, and environmentally sound relief to communities
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`in the Yazoo Backwater Area while providing significant ecological benefits. Yet, the Corps
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`flatly refused to consider this alternative or any other alternative in the 2020 FSEIS, and instead
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`insisted on completing the same 14,000 cfs pumping plant prohibited by the Veto.
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`25.
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`The Conservation Organizations documented their significant concerns with the Yazoo
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`Pumps Redo in detailed comment letters sent to the Corps on June 15, 2020, November 30, 2020,
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`and January 11, 2021. The Conservation Organizations sent the Corps and the Service a Notice
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`of Intent to Sue under the Endangered Species Act on February 9, 2021.
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`II.
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`26.
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`Defendants
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`The U.S. Army Corps of Engineers is a federal agency headquartered in the District of
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`Columbia that made the illegal decision at issue in this Complaint.
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`27.
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`The U.S. Fish and Wildlife Service is the agency within the United States Department of
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`Interior responsible for administering the provisions of the Endangered Species Act with regard
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`to species listed as either threatened or endangered, including the endangered pondberry.
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`LEGAL BACKGROUND
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`Clean Water Act
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`Congress enacted the Clean Water Act in 1972 with the objective to “restore and
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`I.
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`28.
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`maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
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`§ 1251(a).
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`29.
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`Congress established several goals for the Act, including attainment and preservation of
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`“water quality which provides for the protection and propagation of fish, shellfish, and wildlife.”
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`Id. § 1251(a)(2).
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`30.
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`To further these goals, Congress prohibited the “discharge of any pollutant” into
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`navigable waters except in accordance with the Clean Water Act. Id. § 1311(a).
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`31.
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`Congress granted the Corps authority to issue permits for the discharge of dredged or fill
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`material under Section 404 of the Clean Water Act. Id. § 1344. Section 404(a) allows the Corps
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`to “issue permits, after notice and opportunity for public hearings for the discharge of dredged or
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`fill material into the navigable waters at specified disposal sites.” Id. § 1344(a).
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`32.
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`The Clean Water Act directs the Corps to evaluate sites for the discharge of dredged or
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`fill material “[s]ubject to subsection (c) of this section” and “through the application of
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`guidelines developed by the [EPA] Administrator.” Id. § 1344(b). Accordingly, before granting
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`a Section 404 permit or approving one of its own water resources projects, the Corps must satisfy
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`both the Section 404(b)(1) Guidelines—the binding regulations promulgated by the EPA—and
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`any restrictions on discharges established through Section 404(c) by EPA.
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`33.
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`The Corps must evaluate its own water resource projects under the environmental criteria
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`set forth in the Clean Water Act Section 404(b)(1) Guidelines, which are the enforceable
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`regulations promulgated by EPA. See 33 C.F.R. Part 320; 40 C.F.R. Part 230. The Guidelines
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`explicitly apply to the Corps when it seeks to approve its own water resources projects. 33 CFR
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`§ 336.1(a).
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`34.
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`The Guidelines prohibit the Corps from authorizing any discharge of dredged or fill
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`material: (1) if a practicable alternative to the proposed discharge would have less adverse
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`impact on the aquatic ecosystem; (2) if the discharge will cause or contribute to significant
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`degradation of the environment; (3) if the discharge will cause or contribute to violations of
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`water quality standards; (4) if the discharge will jeopardize a listed species or adversely modify
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`critical habitat protected by the Endangered Species Act; or (5) if the project proponent has
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`failed to take all appropriate steps to minimize potential adverse impacts. 40 C.F.R. § 230.10.
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`35.
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`Section 404(c) of the Clean Water Act grants the EPA Administrator the authority to
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`preclude or override the Corps’ decision to issue a 404 permit or authorize its own project to
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`dredge or fill jurisdictional waters. 33 U.S.C. § 1344(c). Section 404(c) is commonly referred to
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`as EPA’s “veto authority.” Congress granted this backstop authority to EPA in recognition of its
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`role as the “environmental conscience” of the Clean Water Act.
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`36.
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`Section 404(c) authorizes the EPA Administrator to “prohibit the specification . . . of any
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`defined area as a disposal site” whenever he or she determines “that the discharge of such
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`materials will have an unacceptable adverse effect on . . . fishery areas (including spawning and
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`breeding areas), wildlife,” and other resources. Id. In making this determination, the
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`Administrator must provide “notice and opportunity for public hearings” in order to determine
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`whether a proposed project will cause unacceptable adverse effects. Id.
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`37.
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`EPA’s regulations define an “unacceptable adverse effect” to include an “impact on an
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`aquatic or wetland ecosystem which is likely to result in … significant loss of or damage to
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`fisheries, shellfishing, or wildlife habitat or recreation areas.” 40 C.F.R. § 231.2(e). EPA is to
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`consider both direct and secondary impacts in determining whether an adverse effect is
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`unacceptable.
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`38.
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`Section 404(c) authorizes EPA to prohibit, deny, or restrict the discharge of dredged or
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`fill material at a disposal site. To “prohibit specification” of a disposal site means “to prevent the
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`designation of an area as a present or future disposal site.” 40 C.F.R. § 231.2(b).
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`39.
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`EPA’s regulations set forth a rigorous process to ensure that the Administrator exercises
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`the authority to veto a project consistent with the unacceptable adverse effects standard and after
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`an opportunity for public comment. Id. § 231.3(a).
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`40.
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`EPA’s regulations centralize the decision-making process with EPA Headquarters in
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`Washington D.C. “to ensure consistency and to set some precedents for future guidance.” Denial
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`or Restriction of Disposal Sites Section 404(c) Procedures, 44 Fed. Reg. 58,078, 58,081 (Oct. 9,
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`1979).
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`41.
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`EPA has used its veto authority sparingly, vetoing just 13 projects, since the enactment of
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`the Clean Water Act in 1972. Over that timeframe, the Corps has approved approximately 2
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`million activities under Section 404.
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`42.
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`EPA has never revoked a veto.
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`II. Water Resources Development Act
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`43.
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`Congress enacted multiple acts establishing the policies, procedures, and programs
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`applicable to the development, construction, and operation of federal water resources projects by
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`the Corps, and to authorize the study and construction of federal water resources projects. The
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`Conservation Organizations refer to these acts collectively as the Water Resource Development
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`Act (“WRDA”).
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`44.
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`The WRDA requires the Corps to mitigate all losses to fish and wildlife caused by a
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`water resource project, unless the Secretary determines that the adverse impacts to fish and
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`wildlife would be “negligible.” 33 U.S.C. § 2283(d)(1). In addition, the Corps “must ensure that
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`impacts to bottomland hardwood forests are mitigated in-kind, and other habitat types are
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`mitigated to not less than in-kind conditions, to the extent possible.” Id.
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`45.
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`The WRDA also requires the Corps to provide “a specific plan to mitigate for damages to
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`ecological resources, including terrestrial and aquatic resources, and fish and wildlife losses
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`created by such project.” Id. The specific mitigation plan must include a series of components,
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`including at a minimum:
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` A detailed description of the type, amount, and characteristics of the habitat being
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`restored, a description of the physical actions to be taken to carry out the restoration, and
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`the functions and values that will be achieved;
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` A detailed description of the ecological success criteria, based on replacement of lost
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`functions and values, that will be evaluated and used to determine mitigation success;
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` A description of the lands and interest in lands to be acquired for mitigation, and the basis
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`for determining that those lands will be available;
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` A mitigation monitoring plan that includes the cost and duration of monitoring, and
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`identifies the entities responsible for monitoring if it is practicable to do so (if the
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`responsible entity is not identified in the monitoring plan it must be identified in the
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`project partnership agreement that is required for all Corps projects). Corps mitigation
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`must be monitored until the monitoring demonstrates that the ecological success criteria
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`established in the mitigation plan have been met; and
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` A contingency plan for taking corrective action in cases where monitoring shows that
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`mitigation is not achieving ecological success as defined in the plan.
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`See id. § 2283(d)(3).
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`46.
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`The WRDA also requires the Corps to comply with “the mitigation standards and policies
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`established pursuant to the regulatory programs” administered by the Corps, including the
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`Section 404(b)(1) Guidelines discussed above. 33 U.S.C. § 2283(d)(3)(A).
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`47.
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`In addition, the WRDA requires the Corps to subject project studies to “a peer review by
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`an independent panel of experts” if the project’s total costs, including mitigation costs, exceed
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`$200 million or if the project is “controversial.” 33 U.S.C. § 2343(a)(3)(A)(i), (iii). A project is
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`controversial if “there is a significant public dispute as to the size, nature, or effects of the
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`project” or “there is a significant public dispute as to the economic or environmental costs or
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`benefits of the project.” Id. § 2343(a)(4).
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`48.
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`In all cases, the peer review must be carried out concurrently with the project study and
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`must be completed “not more than 60 days after the last day of the public comment period for the
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`draft project study,” unless the Chief of Engineers determines that more time is necessary. Id.
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`§ 2343(b)(1).
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`III. National Environmental Policy Act
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`49.
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`Congress enacted NEPA to “promote efforts which will prevent or eliminate damage to
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`the environment.” 42 U.S.C. § 4321. NEPA implements the precautionary principle to think
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`first, then act, and requires agencies, “to the fullest extent possible … use all practical means,
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`consistent with the requirements of [NEPA] and other essential considerations of national policy,
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`to restore and enhance the quality of the human environment and avoid or minimize any possible
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`adverse effects of their actions on the quality of the human environment.” 40 C.F.R.
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`§ 1500.2(d).1
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`50.
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`NEPA recognizes the fundamental importance of public involvement in decisions that
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`affect the quality of the environment. Id. § 1500.1(b) (requiring that agencies make “high
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`quality” environmental information available to public officials and citizens “before decisions
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`are made and before actions are taken.”); id. § 1502.1 (environmental impact statement must
`
`
`1 The Complaint cites to the 1978 NEPA regulations, which govern the Corps’ review. See
`NEPA Regulations, 43 Fed. Reg. 55,978 (Nov. 29, 1978). The Corps started and carried out
`most of the study before the effective date of the new regulations on September 14, 2020. See
`Update to the Regulations Implementing the Procedural Provisions of the National
`Environmental Policy Act, 85 Fed. Reg. 43,304, 43,340 (July 16, 2020). The Corps did not
`advise the public that it was going to use the new NEPA regulations, id., and indeed, referred to
`the old regulations in a programmatic agreement signed on January 13, 2021.
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`provide decisionmakers and public a “full and fair discussion” of impacts and of reasonable
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`alternatives to avoid or minimize impacts).
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`51.
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`To fulfill Congress’s twin aims of comprehensive environmental analysis and broad,
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`informed public involvement, federal agencies must prepare an environmental impact statement
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`(“EIS”) for all “major Federal actions significantly affecting the quality of the human
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`environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.4.
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`52.
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`An EIS must rigorously and objectively evaluate a range of reasonable alternatives to the
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`proposed action. 42 U.S.C. § 4332(C)(iii) & (E); 40 C.F.R. § 1502.14. This analysis “is the
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`heart of the NEPA process” and provides “a clear basis for choice among options by the
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`decisionmaker and the public.” 40 C.F.R. § 1502.14.
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`53.
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`The EIS must take a hard look at the environmental impacts of a proposed project and
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`“provide [a] full and fair discussion of significant environmental impacts” associated with a
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`federal decision. Id. § 1502.1. The EIS must include a discussion of the direct, indirect, and
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`cumulative impacts for each reasonable alternative, so that the agency can take a hard look at
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`these impacts before reaching a decision. Id. § 1502.15. The EIS should also identify “any
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`adverse environmental effects which cannot be avoided should the proposal be implemented.”
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`42 U.S.C. § 4332(C)(ii).
`
`54.
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`Federal agencies have an ongoing obligation to supplement their analysis in light of
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`“significant new circumstances or information relevant to environmental concerns and bearing
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`on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1). A supplemental environmental
`
`impact statement must evaluate any new alternatives and revaluate prior alternatives in light of
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`the new information or changed circumstances. Id.; 40 C.F.R. § 1502.14.
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`55.
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`An agency preparing an EIS has a duty to assess, consider, and respond to all comments
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`submitted by the public. 40 C.F.R. § 1503.4(a).
`
`IV.
`
`56.
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`Endangered Species Act
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`The Endangered Species Act is “the most comprehensive legislation for the preservation
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`of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180
`
`(1978). Its purpose is to “provide a means whereby the ecosystems upon which endangered
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`species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). Congress
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`enacted the Endangered Species Act to achieve two purposes: to provide for the protection of
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`imperiled species to prevent their extinction, and to facilitate recovery of those species so that
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`they no longer need the protections provided by the Endangered Species Act.
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`57.
`
`To achieve its twin objectives of survival and recovery, the Endangered Species Act
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`directs the Service to determine which species of plants and animals are “threatened” or
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`“endangered.” Id. § 1533. A species is “endangered” if “it is in danger of extinction throughout
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`all or a significant portion of its range.” Id. § 1532(6).
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`58.
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`Section 7 of the Endangered Species Act prohibits federal agencies from undertaking
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`actions that are “likely to jeopardize the continued existence” of any listed species or “result in
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`the destruction or adverse modification of” critical habitat.