`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`WESTERN DIVISION
`
`
`
`Case No. _______________
`
`
`
`
`
`v.
`
`
`
`_________________________________________
`)
`
`
`)
`NATURAL LAND INSTITUTE,
`
`)
`
`
`Plaintiff,
`)
`
`)
`
`)
`
`)
`
`
`THE GREATER ROCKFORD AIRPORT AUTHORITY, )
`
`
`)
`THE GREATER ROCKFORD AIRPORT AUTHORITY )
`BOARD OF COMMISSIONERS,
`
`)
`
`
`)
`MICHAEL P. DUNN,
`
`)
`EXECUTIVE DIRECTOR OF THE GREATER
`
`)
`ROCKFORD AIRPORT AUTHORITY,
`
`)
`
`
`)
`UNITED STATES DEPARTMENT OF
`
`)
`TRANSPORTATION,
`
`)
`
`
`)
`FEDERAL AVIATION ADMINISTRATION,
`
`)
`
`
`)
`PETE BUTTIGIEG, SECRETARY OF THE UNITED
`)
`STATES DEPARTMENT OF TRANSPORTATION,
`)
`
`
`)
`STEVE DICKSON, ADMINISTRATOR OF FEDERAL
`)
`AVIATION ADMINISTRATION,
`
`)
`
`
`)
`UNITED STATES DEPARTMENT OF INTERIOR,
`)
`
`
`)
`UNITED STATES FISH AND WILDLIFE SERVICE,
`)
`
`
`)
`DEB HAALAND, SECRETARY OF UNITED STATES
`)
`DEPARTMENT OF INTERIOR,
`
`)
`
`
`)
`MARTHA WILLIAMS, ACTING DIRECTOR OF
`)
`UNITED STATES FISH AND WILDLIFE SERVICE,
`)
`
`
`)
`Defendants.
`
`)
`_________________________________________
`)
`
`
`
`1
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 2 of 44 PageID #:2
`
`PLAINTIFF’S COMPLAINT FOR
`DECLARATORY AND INJUNCTIVE RELIEF
`
`INTRODUCTION
`
`1.
`
`This is an action seeking declaratory and injunctive relief prohibiting any and all
`
`activities that will adversely affect the environmental resources associated with Bell Bowl Prairie
`
`in Winnebago County, Illinois. Proposed and scheduled roadwork and expansion for a Midfield
`
`Cargo Development (the “Proposed Action”) on the publicly-owned Chicago Rockford
`
`International Airport (“RFD” or “Airport”)1, which is operated by the Greater Rockford Airport
`
`Authority (“GRAA”), scheduled to begin on November 1, 2021, will permanently destroy Bell
`
`Bowl Prairie.
`
`2.
`
`Illinois is known as the “Prairie State” because most of it was a natural grassland
`
`at the time of statehood. Since then, almost all of Illinois’ prairie has been plowed under except
`
`on land that was too steep, rocky, sandy, gravelly, or wet to cultivate. The steep, gravelly slope at
`
`Bell Bowl Prairie is what kept the prairie there from being farmed or otherwise destroyed until
`
`now.
`
`3.
`
`Only one-hundredth of one percent - 0.01% - of the original Illinois prairie remains
`
`in good condition. At most, it is estimated that only 18.4 acres of dry gravel prairie (such as Bell
`
`Bowl Prairie) is in good condition in the entire state. Native prairie such as Bell Bowl Prairie is
`
`so highly valued because it is vanishingly rare.
`
`4.
`
`Bell Bowl Prairie has a number of rare and unusual plants. Two of the plants are
`
`so rare that they are listed by the State of Illinois as endangered: Prairie Dandelion and Large-
`
`Flowered Beardtongue.
`
`
`1 The Airport also proposes a Northwest Cargo Development. That development does not impact Bell Bowl Prairie.
`
`2
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 3 of 44 PageID #:3
`
`5.
`
`Bell Bowl Prairie is also home to the endangered Rusty Patched Bumble Bee (the
`
`“Bee”). The Bee was sighted as recently as August of this year at Bell Bowl Prairie. Once
`
`common throughout the midwestern United States, the Bee has disappeared from the vast majority
`
`of its native range and now stands on the brink of extinction, owing to habitat loss and destruction.
`
`6.
`
`In 2017, the U.S. Fish and Wildlife Service (“USFWS”) listed the Bee as an
`
`“endangered species” under the Endangered Species Act. See Endangered Species Status for
`
`Rusty Patched Bumble Bee, 82 Fed. Reg. 3186, 3205 (Jan. 11, 2017).
`
`7.
`
`The Bee once occupied grasslands and tallgrass prairies of the Upper Midwest, but
`
`most grasslands and prairies have been lost, degraded, or fragmented by conversion to other uses.
`
`The Bee needs areas that provide nectar and pollen from flowers, nesting sites (underground and
`
`abandoned rodent cavities or clumps of grasses), and overwintering sites for hibernating queens
`
`(undisturbed soil). As pollinators, Rusty Patched Bumble Bees contribute to our food security and
`
`the healthy functioning of our ecosystems.
`
`8.
`
`The GRAA’s planned roadwork and expansion of the Proposed Action into Bell
`
`Bowl Prairie will further jeopardize the existence of the Rusty Patched Bumble Bee and destroy
`
`its habitat.
`
`9.
`
`This complaint is necessitated by the failure of all of the named Defendants to
`
`protect Bell Bowl Prairie and its endangered or threatened flora and fauna. Contrary to both the
`
`letter and spirit of applicable federal and state statutes, the Defendants have violated the detailed
`
`regulatory framework set out to protect such precious resources as Bell Bowl Prairie and its
`
`endangered flora and fauna, including the Bee. Defendants have failed to consider proper
`
`alternatives for meeting the purposes of the Proposed Action that would not destroy Bell Bowl
`
`Prairie.
`
`3
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 4 of 44 PageID #:4
`
`10.
`
`Defendants have also ignored the methodology and regulatory framework that
`
`requires a supplemental environmental assessment given the recent discovery of the Bee on Bell
`
`Bowl Prairie and the need for further review of viable and obvious less-harmful alternatives to the
`
`destruction of Bell Bowl Prairie given the Bee’s presence at the Prairie.
`
`11.
`
`Bell Bowl Prairie will be permanently destroyed—starting November 1, 2021—
`
`unless Defendants are stopped from proceeding with construction until further environmental and
`
`other regulatory assessment is performed, and alternative plans considered.
`
`
`
`The Plaintiff
`
`PARTIES
`
`12.
`
`Plaintiff Natural Land Institute (“NLI”) is a member-supported, not-for-profit
`
`organization dedicated to preserving land and natural diversity for future generations. Since 1958,
`
`NLI has protected, managed, and restored 18,000 acres throughout Illinois and southern
`
`Wisconsin. These include prairies, forests, wetlands, and river corridors. Serving as a regional
`
`land trust, NLI accepts donations of properties, buys lands, manages natural areas, and helps
`
`landowners establish legal agreements that permanently limit harmful use and development. The
`
`mission of NLI is to create an enduring legacy of natural land in northern Illinois for people, plants,
`
`and animals. The role of NLI includes both advocacy for land preservation and land use planning
`
`and direct action to preserve areas by acquisition, either on its own or in conjunction with other
`
`organizations and agencies, or by working with landowners to voluntarily encumber their land
`
`with a conservation easement to protect its conservation values in perpetuity. NLI is headquartered
`
`in Rockford, Illinois.
`
`13.
`
`Since 1958, NLI and its members have been dedicated to preserving land and
`
`natural diversity for future generations throughout Illinois and southern Wisconsin, including
`
`4
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 5 of 44 PageID #:5
`
`forests, wetlands, river corridors, and prairies. Its mission is “to create an enduring legacy of
`
`natural land in northern Illinois for people, plants, and animals.”
`
`14.
`
`NLI brings this lawsuit on behalf of its management, its employees and its
`
`approximately 700 members who have helped manage and care for Bell Bowl Prairie for decades.
`
`Many of these members regularly observe, visit, study, or otherwise enjoy threatened and
`
`endangered species at Bell Bowl Prairie. Leaving the habitat of such species without habitat
`
`protection harms the interests of these members and the public in viewing listed species, including
`
`the federally-listed endangered Bee, now and in the future, and benefiting from their existence.
`
`See Ex. A (Declaration of John White), Ex. B (Declaration of Zachary Grycan), Ex. C (Declaration
`
`of Jennifer Kuroda).
`
`15.
`
`NLI and its members derive aesthetic, recreational, professional, economic, and
`
`personal benefits from the Bee and its habitat as well as the various flora on Bell Bowl Prairie. Id.
`
`Defendants’ failure to protect Bell Bowl Prairie decreases the Bee’s chances of survival and
`
`recovery, thereby harming NLI members’ interests in enjoying and protecting the Bee. These
`
`injuries are caused by the Defendants’ violations of the National Environmental Policy Act
`
`(“NEPA”), the Administrative Procedure Act (“APA”), the Illinois Endangered Species Protection
`
`Act,2 as well as the GRAA’s agreement with NLI for custody and management. The violations
`
`and breaches are redressable through the relief requested by NLI.
`
`The Defendants
`
`16.
`
`Defendant The Greater Rockford Airport Authority (“GRAA”) is a public,
`
`municipal corporation duly created, organized, and existing under the laws of Illinois, pursuant to
`
`70 Ill. Comp. Stat. Ann. 5, et seq., with administration offices at 60 Airport Drive, Rockford, Illinois
`
`
`2 NLI intends to amend its Complaint to address, among other possible claims, claims under the Endangered Species
`Act, 16 U.S.C. §§ 1531, et seq.
`
`5
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 6 of 44 PageID #:6
`
`61109. Formed in 1946, GRAA has four jurisdictions who appoint a seven-member Board of
`
`Commissioners. The establishment, continued maintenance, and operation of the Airport and its
`
`facilities are in the public interest, and such purposes are declared to be public and governmental
`
`in nature and essential to the public interest under Illinois law. According to the GRAA’s 2022
`
`Annual Budget and Appropriation Ordinance, one of the objectives of the GRAA is to “[p]rotect
`
`and enhance the environment.”
`
`17.
`
`Defendant The Greater Rockford Airport Authority Board of Commissioners is
`
`composed of seven members. The Mayor of the City of the Rockford appoints three members, the
`
`County Board Chairman of Winnebago County appoints two members, the Mayor of Loves Park
`
`appoints one member, and the Village President of Machesney Park appoints one member. The
`
`Board of Commissioners is responsible for setting policies and ordinances governing the
`
`operations at RFD, which are carried out or enforced by a professional staff.
`
`18.
`
`Defendant Michael P. Dunn (“Dunn”) is the Executive Director of the GRAA, and
`
`is sued in that capacity. As the Executive Director, Dunn is responsible for overseeing the staffing
`
`of departments and the day-to-day operations of the Airport. Dunn reports to the Board of
`
`Commissioners of the GRAA.
`
`19.
`
`Defendant United States Department of Transportation (“DOT”)3 is the agency of
`
`the United States responsible for issuing an environmental finding to allow approval of the RFD’s
`
`Airport Layout Plan for the GRAA’s Proposed Action. DOT is charged with implementing and
`
`ensuring compliance with federal Acts and regulations, including but not limited to the National
`
`Environmental Policy Act (“NEPA”). It is subject to the Administrative Procedure Act (“APA)
`
`and other federal laws.
`
`
`3 Together the United States Department of Transportation, Federal Aviation Administration, Secretary Buttigieg and
`Administrator Dickson are referred to as the “FAA Defendants.”
`
`6
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 7 of 44 PageID #:7
`
`20.
`
`Defendant Federal Aviation Administration (“FAA”) is a federal agency within the
`
`United States Department of Transportation. FAA is charged with implementing and ensuring
`
`compliance with federal Acts, including but not limited to NEPA. FAA is subject to the APA and
`
`other federal laws.
`
`21.
`
`Defendant Pete Buttigieg is named solely in his official capacity as Secretary of the
`
`United States Department of Transportation. In that capacity, Secretary Buttigieg is responsible
`
`for the administration, operations, and activities of the Department of Transportation, including
`
`the Federal Aviation Administration, and for the federal government’s compliance with NEPA and
`
`the APA.
`
`22.
`
`Defendant Steve Dickson is named solely in his official capacity as Administrator
`
`of the Federal Aviation Administration. In that capacity, Dickson is responsible for compliance
`
`under NEPA and the APA for the Proposed Action on Bell Bowl Prairie.
`
`23.
`
`Defendant United States Department of Interior (“DOI”) 4 is the agency of the
`
`United States that is an entity responsible for consultation under the Endangered Species Act of
`
`1973 (“ESA”). DOI is charged with implementing and ensuring compliance with federal Acts and
`
`regulations, including but not limited to NEPA and ESA. It is subject to the Administrative
`
`Procedure Act (“APA) and other federal laws.
`
`24.
`
`Defendant United States Fish and Wildlife Service (“USFWS”) is a federal agency
`
`within the United States Department of Interior. USFWS is charged with implementing and
`
`ensuring compliance with federal Acts, including but not limited to NEPA and ESA. USFWS is
`
`subject to the APA and other federal laws.
`
`
`4 Together, the United States Department of Interior, United States Fish and Wildlife Service, Secretary Haaland, and
`Acting Director Williams are referred to as the “USFWS Defendants”.
`
`7
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 8 of 44 PageID #:8
`
`25.
`
`Defendant Deb Haaland is named soley in her capacity as Secretary of the United
`
`States Department of the Interior. In that capacity, Haaland is responsible for the administration,
`
`operations and activities of the Department of Interior, including USFWS, and for compliance with
`
`NEPA, ESA, and the APA.
`
`26.
`
`Defendant Martha Williams is sued in her official capacity as Acting Director of
`
`the USFWS. Through delegation of authority from the Secretary of the Department of the Interior,
`
`Williams is legally responsible for the failure to protect Bell Bowl Prairie.
`
`JURISDICTION AND VENUE
`
`27.
`
`NLI brings this action under the National Environmental Policy Act (“NEPA”), 42
`
`U.S.C. §§ 4321-4370e, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, 28
`
`U.S.C. § 2201 (Declaratory Judgment Act), 28 U.S.C. 2202 and Fed. R. Civ. P. 65 (Injunctive and
`
`Temporary Relief), 28 U.S.C. § 1361 (mandamus actions), and state law claims for which there is
`
`jurisdiction under 28 U.S.C. § 1367. NLI intends to amend this Complaint for further relief in the
`
`proper course of law and time to seek relief under the Endangered Species Act (“ESA”), 16 U.S.C.
`
`§ 1532, et seq., which provides for sixty days written notice prior to commencing an action under
`
`the ESA. See 16 U.S.C. § 1540(g).
`
`28.
`
`This Court has subject matter jurisdiction pursuant to 5 U.S.C. §§ 701-706 (judicial
`
`review under APA); 28 U.S.C. § 2201. This Court also has jurisdiction pursuant to 28 U.S.C.
`
`§§ 1331, 1361 which grants federal district courts “original jurisdiction of all civil actions arising
`
`under the . . . laws . . . of the United States” and “any action in the nature of mandamus to compel
`
`an officer . . . of the United States or any agency thereof to perform a duty owed to the plaintiff.”
`
`The Court has supplemental jurisdiction under 28 U.S.C. § 1367 over all other claims.
`
`8
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 9 of 44 PageID #:9
`
`29.
`
`Venue in this Court is proper pursuant to 28 U.S.C. § 1391(b)(1)-(2) and (e)
`
`because the Bell Bowl Prairie located on the RFD is within the Western Division of the Northern
`
`District of Illinois.
`
`30.
`
`The federal agencies have waived sovereign immunity in this action pursuant to
`
`5 U.S.C. § 702.
`
`STATUTORY AND REGULATORY FRAMEWORKS
`
`The National Environmental Policy Act (“NEPA”)
`
`31.
`
`NEPA’s central goals are “[t]o declare a national policy which will encourage
`
`productive and enjoyable harmony between man and his environment; to promote efforts which
`
`will prevent or eliminate damage to the environment and biosphere and stimulate the health and
`
`welfare of man; [and] to enrich the understanding of the ecological systems and natural resources
`
`important to the Nation . . . .” 42 U.S.C. § 4321.
`
`32.
`
`NEPA requires that “Federal agencies consider the environmental impacts of their
`
`actions in the decision-making process” and “provide a detailed statement on proposals for major
`
`Federal actions significantly affecting the quality of the human environment. . . . The purpose
`
`and function of NEPA is satisfied if Federal agencies have considered relevant environmental
`
`information, and the public has been informed regarding the decision-making process.” 40 C.F.R.
`
`§ 1500.1(a).
`
`33.
`
`As the Nation’s environmental policy, Congress has declared that “it is the
`
`continuing policy of the Federal Government, in cooperation with State and local governments,
`
`and other concerned public and private organizations, to use all practicable means and measures,
`
`including financial and technical assistance, in a manner calculated to foster and promote the
`
`general welfare, to create and maintain conditions under which man and nature can exist in
`
`9
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 10 of 44 PageID #:10
`
`productive harmony, and fulfill the social, economic, and other requirements of present and future
`
`generations of Americans.” 42 U.S.C. § 4331(a).
`
`34.
`
`“Congress recognizes that each person should enjoy a healthful environment and
`
`that each person has a responsibility to contribute to the preservation and enhancement of the
`
`environment.” 42 U.S.C. § 4331(c).
`
`35.
`
`Pursuant to 42 U.S.C. § 4342, Congress created the Council on Environmental Quality
`
`(CEQ) to promulgate regulations applicable to all federal agencies consistent with the intent and
`
`purposes of NEPA. See 40 C.F.R. § 1500 et seq. NEPA is binding on all Federal agencies. Id.
`
`§ 1500.3(a).
`
`36.
`
`Under NEPA, federal, state, and local agencies are authorized to cooperate with one
`
`another in preparing environmental documents. 40 C.F.R. § 1506.2. Federal, state and local agencies
`
`as well as any applicants and the public are also required to be involved in preparing the environmental
`
`assessments and implementing NEPA. 40 C.F.R. §§ 1501.5(e), 1506.6. Agencies shall further consult
`
`with other agencies concerning concurrence on statutory determinations. 40 C.F.R. § 1501.1(b)(2).
`
`37.
`
`All agencies of the Federal Government shall also “study, develop, and describe
`
`appropriate alternatives to recommended courses of action in any proposal which involves unresolved
`
`conflicts concerning alternative uses of available resources[.]” 42 U.S.C. § 4332(E).
`
`38.
`
`NEPA regulations permit federal agencies, such as the FAA, to set forth their own
`
`policies and procedures for implementation and compliance with NEPA. See 40 C.F.R. § 1500.6. The
`
`FAA’s policies and procedures for implementing NEPA, in addition to those found in the NEPA
`
`regulations, are found in FAA Order 1050.1F and the FAA’s implementing instructions for airport
`
`actions are found in FAA Order 5050.4B.
`
`10
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 11 of 44 PageID #:11
`
`39.
`
`In determining the appropriate level of review under NEPA, when the proposed
`
`action is not categorically excluded, federal agencies are required to determine whether the proposed
`
`action “[i]s not likely to have significant effects or the significance of the effects is unknown and is
`
`therefore appropriate for an environmental assessment” or “[i]s likely to have significant effects and
`
`is therefore appropriate for an environmental impact statement.” 40 C.F.R. § 1501.3.
`
`40.
`
`Environmental assessments (“EA”) assess the proposed action’s environmental
`
`impacts and determine whether those impacts require a more extensive review in the form of an
`
`environmental impact statement. 40 C.F.R. § 1508.1(h). “In considering whether the effects of the
`
`proposed action are significant, agencies shall analyze the potentially affected environment and degree
`
`of the effects of the action. . . . In considering the potentially affected environment, agencies should
`
`consider, as appropriate to the specific action, the affected area (national, regional, or local) and its
`
`resources, such as listed species and designated critical habitat under the Endangered Species Act.
`
`Significance varies with the setting of the proposed action. For instance, in the case of a site-specific
`
`action, significance would usually depend only upon the effects in the local area. In considering the
`
`degree of the effects, agencies should consider the following, as appropriate to the specific action: (i)
`
`Both short- and long-term effects. (ii) Both beneficial and adverse effects. (iii) Effects on public health
`
`and safety. [and] (iv) Effects that would violate Federal, State, Tribal, or local law protecting the
`
`environment.” 40 C.F.R. § 1501.3(b).
`
`41.
`
`In preparing the EA, coordination with agencies, industry groups, and the affected
`
`community are required to ensure that the “issues of greatest public concern” are addressed. FAA
`
`Order 5050.4B, Paragraph 704.a.
`
`42.
`
`“The FAA must advise and assist the applicant during preparation of the EA, and
`
`must independently evaluate and take responsibility for the EA to ensure that: (1) the applicant’s
`
`11
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 12 of 44 PageID #:12
`
`potential conflict of interest does not impair the objectivity of the document; and (2) the EA meets
`
`the requirements” of FAA Order 1050.1F. FAA Order 1050.1F, Paragraph 2.2-1.d.
`
`43.
`
`An EA must be “a ‘concise document’ that takes a ‘hard look’ at expected
`
`environmental effects of a proposed action.” FAA Order 5050.4B, Paragraph 700. To meet NEPA’s
`
`“hard look” requirement, the agency must examine the relevant data and articulate a satisfactory
`
`explanation for its action. This includes requiring that environmental impacts are discussed in
`
`sufficient detail. “The EA must show that FAA took the required ‘hard look’ at these impacts to
`
`support an FAA decision to prepare a FONSI or an EIS.” FAA Order 5050.4B, Paragraph 706.f.
`
`44.
`
`“The EA must discuss, in comparative form, the reasonably foreseeable environmental
`
`impacts of the proposed action, the no action alternative, and any other alternatives being considered
`
`in detail. . . . The discussion of environmental impacts must focus on substantive issues and provide
`
`sufficient evidence and analysis for determining whether to prepare an EIS or a FONSI.” FAA Order
`
`1050.1F, Paragraph 6-2.1.f. The factors that must be considered include: Unique characteristics
`
`of the geographic area (e.g., proximity to historic or cultural resources, parks, prime farmlands,
`
`wetlands, wild and scenic rivers, ecologically critical areas); Adverse impacts on properties listed
`
`or eligible for listing in the National Register of Historic Places; Loss or destruction of significant
`
`scientific, cultural, or historical resources; Adverse impacts on endangered or threatened species
`
`or critical habitat; Whether an action threatens a violation of Federal, state, or local law or
`
`requirements imposed for the protection of the environment; Impacts that may be both beneficial
`
`and adverse. A significant impact may exist even if the Federal agency believes that on balance
`
`the impact will be beneficial; The degree to which the effects on the quality of the human
`
`environment are likely to be highly controversial; and Whether the action is related to other actions
`
`with individually insignificant but cumulatively significant impacts. Significance cannot be
`
`12
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 13 of 44 PageID #:13
`
`avoided by terming an action temporary or by breaking it down into component parts.” FAA Order
`
`1050.1F, Paragraph 4-3.2.
`
`45.
`
`“The focus of this analysis is on resources that would be directly, indirectly, and
`
`cumulatively affected. The analysis should include consideration of possible conflicts with the
`
`objectives of Federal, regional, state, tribal, and local land use plans, policies, and controls for the
`
`area concerned, as well as any other unresolved conflicts concerning alternative uses of available
`
`resources.” FAA Order 1050.1F, Paragraph 6-2.1.f.
`
`46.
`
`The EA should include information on existing and planned land uses and zoning for
`
`a number of items, including federally-listed threatened, or endangered species as well as information
`
`on state-listed species as well as historic, archeological, or cultural resources on or eligible for inclusion
`
`on the National Register of Historic Places (NRHP). FAA Order 5050.4B, Paragraph 706.e.(3)(e), (g).
`
`47.
`
`Proposed alternatives must be considered, and “[g]enerally, the greater degree of
`
`impacts, the wider range of alternatives that should be considered.” FAA Order 1050.1F, Paragraph
`
`6-2.1.d.
`
`48.
`
`If, after completing an EA, the agency concludes that an EIS is not required, it will
`
`issue a “finding of no significant impact” (“FONSI”). 40 C.F.R. § 1501.6. However, if an EA
`
`results in a finding that an action will likely have significant effects on the human environment,
`
`then the agency must prepare an EIS. 40 C.F.R. § 1501.3.
`
`49.
`
`FAA Order 1050.1F, Paragraph 9-3 and FAA Order 5050.4B, Paragraph 1402 identify
`
`when a supplemental environmental assessment must be prepared and the required contents for the
`
`supplement.
`
`50.
`
`FAA Order 1050.1F, Paragraph 9-3 provides in relevant part that: “The responsible
`
`FAA official must prepare a supplemental EA, draft EIS, or final EIS if either of the following occurs:
`
`13
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 14 of 44 PageID #:14
`
`(1) there are substantial changes to the proposed action that are relevant to environmental concerns, or
`
`(2) there are significant new circumstances or information relevant to environmental concerns and
`
`bearing on the proposed action or its impacts . . . .” (emphasis added). “Significant information is
`
`information that paints a dramatically different picture of impacts compared to the description of
`
`impacts in the EA or EIS. The FAA also may prepare supplements when the purposes of NEPA will
`
`be furthered by doing so . . . . If a supplement changes a FONSI or a ROD, the FAA must issue a new
`
`FONSI or ROD.” Id.
`
`51.
`
`FAA Order 5050.4B, Paragraph 1402.b. provides: “Text at 40 CFR 1502.9(c) discusses
`
`the need for supplementing EISs. Based on that regulation, the following situations require FAA to
`
`supplement EAs and EISs. (1) The airport sponsor or FAA makes substantial changes in the proposed
`
`action that could affect the action’s environmental effects. or (2) Significant new changes,
`
`circumstances or information relevant to the proposed action, its affected environment, or its
`
`environmental impacts becomes available.”
`
`52.
`
`The supplement to the environmental assessment must be approved or disapproved and
`
`used in the decision-making process to issue a new FONSI or other document. FAA Order 5050.4B,
`
`Paragraph 1402.d.
`
`Illinois Endangered Species Protection and Illinois Natural Areas Preservation Acts
`
`53.
`
`In Illinois “[i]t is the public policy of all agencies of State and local governments to
`
`utilize their authorities in furtherance of the purposes of th[e] [Illinois Endangered Species Protection
`
`Act] by evaluating through a consultation process with the Department [of Natural Resources] whether
`
`actions authorized, funded, or carried out by them are likely to jeopardize the continued existence of
`
`Illinois listed endangered and threatened species or are likely to result in the destruction or adverse
`
`modification of the designated essential habitat of such species . . . and where a State or local agency
`
`14
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 15 of 44 PageID #:15
`
`does so consult in furtherance of this public policy, such State or local agency shall be deemed to have
`
`complied with its obligations under the “Illinois Endangered Species Act”, provided the agency action
`
`shall not result in the killing or injuring of any Illinois listed animal species, or provided that
`
`authorization for taking a listed species has been issued under Section 4, 5, or 5.5 of this Act.” 520 Ill.
`
`Comp. Stat. Ann. 10/11(b).
`
`54.
`
`Likewise, the Illinois Natural Areas Preservation Act provides that: “All areas within
`
`the State except those that are expressly designated by law for preservation and protection in their
`
`natural condition are liable to be altered by human activity. Natural lands and waters together with the
`
`plants and animals living thereon in natural communities are a part of the heritage of the people. They
`
`are of value for scientific research, for teaching, as reservoirs of natural materials not all of the potential
`
`uses of which are now known, as habitats for rare and vanishing species, as places of historic and
`
`natural interest and scenic beauty and as living museums of the native landscape wherein one may
`
`envision and experience primeval conditions in a wilderness-like environment. They also contribute
`
`generally to the public health and welfare and the environmental quality of the State. It is therefore the
`
`public policy of the State of Illinois to secure for the people of present and future generations the
`
`benefits of an enduring resource of natural areas, including the elements of natural diversity present in
`
`the State, by establishing a system of nature preserves, protecting nature preserves and gathering and
`
`disseminating information regarding them, providing for appropriate use of nature preserves that will
`
`not damage them, establishing and maintaining a register of natural areas and buffer areas, providing
`
`certain forms of protection and control of registered natural areas and registered buffer areas and
`
`otherwise encouraging and assisting in the preservation of natural areas and features.” 525 Ill. Comp.
`
`Stat. Ann. 30/2.
`
`15
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 16 of 44 PageID #:16
`
`55.
`
`A consultation process among the Illinois Department of Natural Resources and other
`
`State and local agencies and governments under the Illinois Endangered Species Act has been
`
`implemented under Part 1075 of the Illinois Administrative Code concerning the impacts on State
`
`endangered and threatened species and Natural Areas. Ill. Admin. Code tit. 17, § 1075.10. In order to
`
`promote the conservation of threatened and endangered species and Natural Areas, it is the policy of
`
`Illinois to avoid adverse impacts to those species and Natural Areas. See id. An “adverse impact” is
`
`defined as a direct or indirect alteration of the physical or biological features of the air, land or water
`
`that may affect the survival, reproduction or recovery of a listed species or that may diminish the
`
`viability of a natural area.” Ill. Admin. Code tit. 17, § 1075.20. A “natural area” includes “any area of
`
`land in public or private ownership that is registered under the Natural Areas Act or is identified in the
`
`Illinois Natural Areas Inventory.” Id.
`
`56.
`
`Consultation is required when “[a]ny construction, land management or other activity
`
`authorized, funded or performed by a State agency or local unit of government that will result in a
`
`change to the existing environmental conditions and/or may have a cumulative, direct or indirect
`
`adverse impact on a listed species or its essential habitat or that otherwise jeopardizes the survival of
`
`that species and/or may have a cumulative, direct or indirect adverse impact on a Natural Area,”
`
`including but not limited to: “the alteration, removal, excavation or plowing of non-farmed, non-
`
`cultivated areas, or dredging of soil, sand, gravel, minerals, organic matter, vegetation, or naturally
`
`occurring materials of any kind . . . or the grading or removal of materials that would alter existing
`
`topography. . . .” Ill. Admin. Code tit. 17, § 1075.30(a).
`
`57.
`
`Any proposed action shall not commence until the completion of the consultation
`
`process as required under Part 1075, including but not limited to the preparation of agency action
`
`reports. See Ill. Admin. Code tit. 17, § 1075.40.
`
`16
`
`
`
`Case: 3:21-cv-50410 Document #: 1 Filed: 10/26/21 Page 17 of 44 PageID #:17
`
`58.
`
`Incidental taking may not be authorized if the