Fund for Animals, Inc. v. Rice

United States Court of Appeals,

Eleventh Circuit.

No. 95-3339.

The FUND FOR ANIMALS, INC., Defenders of Wildlife, Florida
Biodiversity Project, Maynard L. Hiss, Holly Jensen, Sierra Club,
Environmental Confederation of Southwest Florida, Plaintiffs-
Appellants,

v.

Terry R. RICE, Colonel, District Engineer, U.S. Army Corps of
Engineers, Bruce Babbitt, Secretary, Department of the Interior,
Mollie Beattie, Director, U.S. Fish and Wildlife Service, John
Wesley White, County Administrator, Sarasota County, Sarasota
County, a political subdivision of the State of Florida,
Defendants-Appellees,

Carol Browner, Administrator, Environmental Protection Agency,
Defendant.

June 13, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-1913-CIV-T-23E), Steven D. Merryday,
Judge.

Before KRAVITCH, DUBINA and CARNES, Circuit Judges.

DUBINA, Circuit Judge:

The Plaintiffs-Appellants ("the Plaintiffs"), seek to prevent

the construction of a municipal landfill on a site in Sarasota

County, Florida, that the Plaintiffs claim is an indispensable

habitat for the highly endangered Florida Panther and also home to

the threatened Eastern Indigo Snake. The Plaintiffs bring this

case before us to challenge the district court's grant of summary

judgment in favor of the Defendants-Appellees ("the Defendants").

The district court's challenged judgment has thus far allowed

Sarasota County to proceed with construction of the landfill. For

the reasons stated below, we affirm the district court's judgment.

I. BACKGROUND
A. The Florida Panther and the Eastern Indigo Snake

The Florida Panther (Felis concolor coryi ) was listed as

endangered in 1967. See 32 Fed.Reg. 4001. This panther, which is

a subspecies of the cougar, "is a large, slender cat, tawny above

and whitish below." David S. Maehr, The Florida Panther, in 1 Rare

and Endangered Biota of Florida 176 (Stephen R. Humphrey et al.

eds., 1992) (hereinafter "Maehr"). According to the Fish and

Wildlife Service ("the F.W.S."), the Florida Panther is "one of the

most endangered large mammals in the world." F.W.S. Biological

Opinion for the Sarasota Landfill Project at 10 (April 3, 1995)

(hereinafter "F.W.S. Opinion").1 Although the Florida Panther once

ranged throughout the Southeastern United States, it has been

reduced to a single population in south Florida. The "geographic

isolation, habitat loss, small population size, and associated

inbreeding" of the remaining population have resulted in a

significant loss of health and genetic variability in Florida

Panthers. F.W.S. Opinion at 10-11. According to current

estimates, there are only 30-50 adult Florida Panthers left in the

wild.2 Id. However, the record in this case indicates that there

1
"F.W.S. Opinion" refers only to the 1995 Biological
Opinion. As discussed infra, the F.W.S. completed three separate
Biological Opinions for the Sarasota landfill project. However,
the first one, completed in 1990, did not concern either the
Florida Panther or the Eastern Indigo Snake. The second one,
completed in 1994, addressed concerns regarding the Florida
Panther and the Eastern Indigo Snake, but was superseded by the
third opinion, the "F.W.S. Opinion," completed in 1995.
2
It is unknown how many Florida Panthers once roamed the
Southeastern United States. Theoretical estimates place
approximately 1,360 Panthers in what is now Florida. Ken
Alvarez, Twilight of the Panther 35 (1993). Anecdotal evidence
from early American history suggests the presence, at one time,
of large panther populations in the American South. For example,
have been no confirmed sightings of the Florida Panther in the area

in which the landfill is to be built.3
The Eastern Indigo Snake (Drymarchon corais couperi ) was

listed as threatened in 1978. See 43 Fed.Reg. 4028. Measuring up

to 81/2 feet, this docile, nonpoisonous snake is the longest found

North America. Paul E. Mohler, The Eastern Indigo Snake, in 3 Rare

and Endangered Biota of Florida 181 (Paul E. Mohler et al. eds.

1992) (hereinafter "Mohler"). Although this iridescent black snake

once ranged throughout Florida, Georgia, southeastern South

Carolina, southern Alabama, and southern Mississippi, its known

populations are now restricted to certain areas in Florida and

Georgia. F.W.S. Opinion at 24. The F.W.S. has not yet designated

any critical habitat for the Eastern Indigo Snake.

B. The Landfill

On November 22, 1989, the United States Army Corps of

a narrative of Hernando deSoto's 16th Century expedition to
Florida told of "many lions and bears ..." Id. at 36 (citations
omitted). While traveling through Georgia during Colonial times,
naturalist William Bartram observed that "bears, tygers
[panthers], wolves and wild cats ... are numerous enough." Id.
(citation omitted).
3
The landfill site is located fifty miles north of the
Caloosahatchee River. Florida Panthers have not been documented
north of this river, which proceeds inland from Fort Myers and
then generally northeast. The Plaintiffs' allegation that
anecdotal evidence proves that there are now Florida Panthers
north of the Caloosahatchee River is not persuasive. While
anecdotal sightings of Florida Panthers have been reported, such
information is generally unsupported by verifiable documentation.
Florida Panthers by nature are "secretive and illusive and seldom
observed," and "confusion and misidentification with the more
widely distributed bobcat" is common. F.W.S. Opinion at 18. The
very expert upon whom the Plaintiffs rely has indicated to the
F.W.S. that "the fact that there are no records of road kills is
compelling evidence that Panthers are not present [in or around
the landfill site]." F.W.S. Opinion at 17 (referencing Maehr,
D., emphasis supplied).
Engineers ("the Corps") received an application from Sarasota

County, Florida ("Sarasota County" or "the County") for a permit

under Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. §§

1251-1387. The proposed project for which Sarasota County sought

a permit consists of constructing an 895-acre landfill and required

ancillary structures on a 6,150-acre site known as the "Walton

Tract." The Walton Tract is located in west central Sarasota

County, north of the Caloosahatchee River, west of the Myakka

River, and just southwest of the Myakka River State Park.

According to current projections, the fill material for the

landfill will impact approximately seventy-four acres of isolated

wetlands.4 The project also includes construction of a roadway

extension ("the Knights Trail Road extension"), consisting of

approximately 2.5 miles of new road and impacting 0.47 acres of

wetlands.

During June of 1990, the Corps dispersed notice of Sarasota

County's application to government agencies, private organizations,

and other interested persons. The notice invited public comment on

the landfill proposal. Two months later, the F.W.S. issued a

4
For purposes of the CWA, the Corps defines wetlands as:

[T]hose areas that are inundated or saturated by
surface or ground water at a frequency and duration
sufficient to support, and that under normal
circumstances do support, a revalence of vegetation
typically adapted for life in saturated soil
conditions. Wetlands generally include swamps,
marshes, bogs, and similar areas.

40 C.F.R. § 232.2(r); see Sheldon M. Novick et al. eds.,
Environmental Law Institute, 2 Law of Environmental
Protection § 12.06[1][b] (1994).
Biological Opinion consenting to the project.5 However, the

Environmental Protection Agency ("the E.P.A.") recommended denial

of the permit under Section 404(b)(1) of the guidelines promulgated

pursuant to the Clean Water Act. At that time, Sarasota County

projected that the landfill would affect 120 acres of wetlands.

The following year, Sarasota County submitted an alternative

analysis, which included modifications of the project calculated to

reduce the prospective effect on wetlands. Four Sites, labeled D,

E, F (the Walton Tract), and G, were proposed for the landfill.

During September of 1993, Sarasota County submitted a revised plan

that would reduce the landfill's effect on wetlands from 120 acres

to approximately seventy-four acres. In February of 1994, the

E.P.A. notified the Corps that it no longer objected to the

issuance of the permit.

At the end of May 1994, the Corps completed an Environmental

Assessment and Statement of Findings, determining that no

environmental impact statement was required. In addition, the

Corps announced that a public hearing would not benefit the

decision-making process. After nearly five years of administrative

review, the Corps approved the requested permit on June 3, 1994.

On August 10, 1994, the Corps verified the applicability of

Nationwide Permit No. 26 to Sarasota County's proposal to fill 0.47

acre of wetlands as part of the Knight's Trail Road extension

project.

5
In consenting to the project in 1990, the F.W.S. indicated
that the landfill would not affect the Wood Stork (Mycteria
americana ). The F.W.S. did not, at that time, consider the
effects that the landfill would have on the Florida Panther and
the Eastern Indigo Snake.
 On June 17, 1994, the Plaintiffs submitted a sixty-day notice

of intent to sue. The Plaintiffs alleged violations of the Clean

Water Act and the Endangered Species Act ("ESA"), 16 U.S.C. §§

1534-44. Two months later, the F.W.S. requested resumption of § 7

consultation under the ESA to allow consideration of any potential

effect on the Florida Panther and the Eastern Indigo Snake.6
In October of 1994, the F.W.S. issued its first Biological

Opinion addressing concerns regarding the Florida Panther and the

Eastern Indigo Snake. The Opinion concluded that the project was

unlikely to jeopardize further the existence of either the Florida

Panther or the Eastern Indigo Snake. However, it did include an

"incidental take" statement for the Eastern Indigo Snake and

recommendations for Florida Panther conservation, wetland

preservation, and a monitoring program. The Corps incorporated the

F.W.S.'s recommendations and modified Sarasota County's permit on

6
Section 7 of the ESA requires that federal agencies consult
with the F.W.S. to ensure that actions the agency authorizes are
not likely to jeopardize the continued existence of species
listed as "threatened" or "endangered," or adversely modify or
destroy habitat designated as critical to the survival of a
listed species. 16 U.S.C. § 1536. If the proposed action may
affect a listed species, formal consultation between the agency
and the F.W.S. is required. Id.; 50 C.F.R. § 402.14. When
formal consultation is initiated, the agency is required to
provide the F.W.S. information about the proposed project and the
"best scientific and commercial data available." 50 C.F.R. §
402.14(d). The F.W.S. then prepares a biological opinion
including: (1) a conclusion regarding whether the proposed
action is likely to jeopardize the continued existence of a
listed species or adversely modify critical habitat; (2) when
necessary, an "incidental take" statement regarding animals
likely to be killed by the project; and (3) reasonable and
prudent alternatives to the action if the proposed action is
likely to jeopardize a species. Id. The phrases "jeopardize the
continued existence of," "destruction or adverse modification,"
and "incidental take" are defined by regulation at 50 C.F.R. §
402.02.
November 14, 1994. Two weeks later, the Plaintiffs commenced an

action in federal district court against the Corps, the F.W.S., the

E.P.A.,7 and the Sarasota County Administrator.
In response to the suit, the F.W.S. requested that the Corps

resume § 7 consultation on the permit. The Corps suspended

Sarasota County's permit the next day, and on February 7, 1995, the

Corps also suspended its verification of coverage for discharge of

fill associated with the Knight's Trail Road extension project. In

April of 1995, the F.W.S. issued to the Corps its second Biological

Opinion addressing concerns regarding the Florida Panther and the

Eastern Indigo Snake. The Opinion included both an "incidental

take" statement for the Eastern Indigo Snake8 and conservation

recommendations for the Florida Panther. This Opinion, which

superseded the F.W.S.'s previous Biological Opinion, again

concluded that the proposed project was unlikely to jeopardize the

continued existence of either the Florida Panther or the Eastern

Indigo Snake. See F.W.S. Opinion at 1.9

7
The E.P.A. was later omitted from the Plaintiffs' Second
Amended Complaint.
8
This "incidental take" statement permits Sarasota County to
kill up to fifty-two snakes within "the footprint of the
landfill" and to "take" an additional two snakes per year in
connection with the construction and use of the access road
during the life of the project. Assuming the life of the project
is thirty-nine years, as projected, the F.W.S. will thus allow
the County to kill up to 130 Eastern Indigo Snakes as
"incidental" to the landfill project. However, the F.W.S.
specifically determined that this level of take would not
jeopardize the existence of the Eastern Indigo Snake due to the
remaining level of population elsewhere in the snake's range.
See F.W.S. Opinion at 26, 28-29.
9
This Opinion, as well as the previous one, are referred to
as "no jeopardy" opinions. A "no jeopardy" biological opinion is
a scientific determination by the F.W.S. that the proposed action
 On April 12, 1995, the Plaintiffs submitted comments to the

Corps on the F.W.S.'s new Biological Opinion. The next day, the

Corps determined, based on the F.W.S.'s Biological Opinion and the

Corps' independent environmental assessment, that reinstatement of

the permit to dredge and fill seventy-four acres of wetlands with

additional modifications was in the public interest. Thus, the

modified permit was reinstated on April 13, 1995.

Following final issuance of the permit, the Plaintiffs filed

their Second Amended Complaint, which raised claims under the Clean

Water Act, the Endangered Species Act, and the National

Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70d. The

Complaint requested declaratory and injunctive relief. Sarasota

County agreed to halt construction temporarily to allow the

district court time to reach a considered decision after full

briefing on the merits. In return, the Plaintiffs consented to

expedite the process of district court review. In particular, the

parties agreed to submit the case to the court on cross-motions for

summary judgment. The district court heard oral argument on June

29, 1995.

During oral argument, the Plaintiffs requested leave of the

court, should their summary judgment motion be denied, to pursue

discovery on the issue of whether United States Senator Bob Graham

(D-Florida) had improperly intervened on Sarasota County's behalf.

is "not likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification of
critical habitat." 50 C.F.R. 402.14(h)(3). A "jeopardy" opinion
can be issued only when the proposed federal action is expected
"to reduce appreciably the likelihood of both the survival and
recovery" of a listed species. Id. at 402.02.
The Plaintiffs based their discovery request on a memorandum that

indicated that Senator Graham had contacted the Attorney General

regarding the litigation and was working to see if the Department

of Justice would withdraw a recommendation that a draft

environmental assessment of the project be made available for

public comment.

On October 12, 1995, the district court granted summary

judgment in favor of Sarasota County and denied the Plaintiffs'

contingent request for discovery. The Plaintiffs filed a notice of

appeal and asked this court to grant an emergency injunction

prohibiting Sarasota County from commencing construction of the new

facility until resolution of the appeal. This court denied the

Plaintiffs' emergency motion for an injunction pending appeal in an

order dated October 26, 1995, and set an expedited briefing

schedule.

II. STATEMENT OF THE ISSUES

(1) Whether the district court erred in finding that the Corps
did not act arbitrarily or capriciously in making the
following three decisions:

A. to grant a permit to fill seventy-four acres of
wetland on the Walton Tract for a county landfill;

B. not to hold its own public hearing on the project;
and

C. not to prepare an Environmental Impact Statement
under NEPA.

(2) Whether the district court erred in finding that the
F.W.S. did not violate the ESA by issuing "no jeopardy"
Biological Opinions and in finding that the Corps did not
act arbitrarily or capriciously in relying on those
Opinions.

(3) Whether the district court erred in denying the Plaintiffs
an opportunity to take discovery on the extent to which
the Corps' decision may have been inappropriately
 influenced by Senator Graham's intervention.

III. STANDARDS OF REVIEW

The standard of review applicable to the main issues in this

case is provided by the Administrative Procedure Act ("APA"), 5

U.S.C. § 706, which states that a court may set aside agency action

that is "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). On

appeal, this court, in reviewing the administrative record, applies

the same arbitrary and capricious standard of review utilized by

the district court. North Buckhead Civic Ass'n v. Skinner, 903

F.2d 1533, 1538-39 (11th Cir.1990). As we recently explained, this

standard is exceedingly deferential:

To determine whether an agency decision was arbitrary and
capricious, the reviewing court "must consider whether the
decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.' This
inquiry must be "searching and careful,' but "the ultimate
standard of review is a narrow one.' Along the standard of
review continuum, the arbitrary and capricious standard gives
an appellate court the least latitude in finding grounds for
reversal; "[a]dministrative decisions should be set aside in
this context ... only for substantial procedural or
substantive reasons as mandated by statute, ... not simply
because the court is unhappy with the result reached.' The
agency must use its best judgment in balancing the substantive
issues. The reviewing court is not authorized to substitute
its judgment for that of the agency concerning the wisdom or
prudence of the proposed action.

Skinner, 903 F.2d at 1538-40 (footnotes and citations omitted)

(emphasis added). See also Marsh v. Oregon Nat. Res. Council, 490

U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

The standard of review applicable to the district court's

decision regarding discovery is the abuse of discretion standard.

See, e.g., Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1466

(11th Cir.1984).
 IV. DISCUSSION

This court recognizes that, with respect to both the Florida

Panther and the Eastern Indigo Snake, "[t]he most insidious and far

reaching threat to the survival of [the] species is habitat loss or

degradation." Mohler at 184 (regarding the Eastern Indigo Snake);

accord Maehr at 180 (regarding the Florida Panther). The present

case, however, involves a challenge to administrative action

governed by the APA. Therefore, we can set aside the federal

agencies' actions here only if we find that the agencies abused

their discretion, or acted arbitrarily, capriciously, or contrary

to law. See Skinner, 903 F.2d at 1538-39. In this case, it is

readily apparent that in approving the landfill location the

Federal agencies acted in a manner that was not an abuse of

discretion, arbitrary, capricious, or contrary to law.

Accordingly, we will not set aside the federal agencies' actions.

A. Challenges Under The Clean Water Act

The CWA prohibits the discharge of pollutants, including
10
dredged spoil, into the waters of the United States, except in

compliance with various sections of the CWA, including Section 404.

33 U.S.C. § 1311(a). Section 404(a) authorizes the Secretary of

the Army, acting through the Corps, to issue permits for the

discharge of dredge or fill material into waters of the United

States. 33 U.S.C. § 1344(a). The Corps may issue individual

permits on a case-by-case basis, or it may issue general permits on

a state, regional, or nationwide basis. 33 U.S.C. § 1344(a), (e).

10
"Waters of the United States" is defined by regulation to
include wetlands. 33 C.F.R. 328.3(a), (b).
 The Plaintiffs allege that the Corps violated the substantive

and procedural requirements of the CWA in three ways: (1) by not

choosing an alternative site where the landfill would have a less

adverse impact on wetlands; (2) by not considering the cumulative

impact of the permitting decision; and (3) by not giving notice

and an opportunity for a public hearing on the permit. We consider

each of these contentions in turn.

1. Alternative Sites

The Plaintiffs' primary argument is that the Corps ignored

alternative sites where the landfill would have had less of an

impact on the aquatic ecosystem. Under applicable Section 404

guidelines, a discharge of dredge or fill will not be permitted if,

among other things, there is a "practicable alternative" to the

proposed discharge that would have a less adverse impact on the

aquatic ecosystem. 33 U.S.C. § 1344(b)(1); 40 C.F.R. § 230.10(a).

An alternative is considered practicable if "it 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 guidelines create a

rebuttable presumption that practicable alternatives are available

where the activity associated with a proposed discharge would occur

on a wetland and is not water dependent. 40 C.F.R. 230.10(a)(3).

If the Corps finds that the permit complies with the Section

404(b)(1) guidelines, the permit "will be granted unless the

district engineer determines that it would be contrary to the

public interest." 33 C.F.R. § 320.4(a)(1). The public interest

review evaluates "the probable impacts, including cumulative
impacts, of the proposed activity and its intended use on the

public interest." Id.

According to the Plaintiffs, Sarasota County itself identified

three such practicable alternatives, and use of any of these sites

would result in less harm to the environment than use of the Walton

Tract. The Plaintiffs rely heavily on a particular section of a

1991 study performed by Sarasota County in which the County

considered alternatives to the Walton Tract. As part of this

study, Sarasota County assigned a numerical "environmental score"

to each of the four potential sites. The scoring system was

designed to give higher scores to those sites most suited for a

landfill. As the following point totals illustrate, the Walton

Tract received the lowest numerical score of the four tracts in the

analysis: Site D—39 points; Site E—39 points; Site F, (the

Walton Tract)—34 points; and Site G—41 points.

Nonetheless, the Plaintiffs' argument that an alternative to

the Walton Tract should have been chosen is meritless for two

reasons. First, the ranking was done by Sarasota County and not

the Corps, and the Corps is not bound by an applicant's ranking

system. In fact, the Corps conducts its own independent

evaluation, and its practicable alternative analysis is not

susceptible to numerical precision, but instead requires a

balancing of the applicant's needs and environmental concerns. See

Sylvester v. United States Army Corps of Eng'rs, 882 F.2d 407, 409

(9th Cir.1989); Louisiana Wildlife Fed'n, Inc. v. York, 761 F.2d

1044, 1048 (5th Cir.1985) (per curiam).

Second, the Corps and Sarasota County point to numerous
reasons to explain why, although the Walton Tract received the

lowest environmental score, it was nonetheless the most suited for

placement of a landfill. Specifically, our review of the record

persuades us that the Corps did not act contrary to, but instead

adhered to the sequencing preference expressed in the CWA

regulations: (1) avoidance, (2) minimization, and (3) compensatory

mitigation. See 33 C.F.R. 320.4(r); 40 C.F.R. 230.10.

As its first task, the Corps determined that there was no

alternative site available that would avoid any impact on wetlands.

Had a suitable upland site existed, such a site would have been

entitled to a presumption that it was a practical alternative. See

40 C.F.R. § 230.10(a)(3).11 Each of the four highest ranking sites

contain scattered, isolated wetlands: Site D is 19% wetlands, Site

E is 22% wetlands, Site G is 13% wetlands, and the Walton Tract is

22% wetlands. A landfill of 895 acres in Sarasota County would

involve impacts on aquatic ecosystems (i.e., filling of wetlands)

and raise the same Section 404 permitting concerns no matter which

of the four sites was chosen. Since the Plaintiffs have not

identified an 895-acre parcel of contiguous uplands in all of

Sarasota County, it is not clear that the presumption established

by 40 C.F.R. § 230.10(a)(3) would ever apply in this case.

The absence of a suitable upland site required the Corps to

analyze all suitable alternatives. In this case, each of the

alternative sites poses its own environmental problems which led

the Corps to determine that it was less suitable for the landfill

11
The Corps also considered a no-action alternative, which
was rejected because the County's existing landfill capacity is
expected to be reached by 1999.
than the Walton Tract. Site D contains wetlands across its

southern boundary, including the headwaters for a stream know as

South Creek. The site contains ninety-two acres of wetlands, which

is eighteen more acres of wetlands than would be filled by the

project if done on the Walton Tract. Most notably, Site D is

confirmed to be a nesting site for the Bald Eagle (Haliaeetus

leucocephalus ).12 Site E borders the Myakka River State Park and

contains two large wetland systems that drain to both the Myakka

River and a waterway called the Cow Pen Slough. Site E contains

sixty-one acres of wetlands. Presence of a state listed species,

the Florida Sandhill Crane (Grus canadensis ), was confirmed on the

site. Moreover, any landfill located on Site G would have been

within the Myakka River watershed. The Corps noted the probable

presence of the Eastern Indigo Snake on Site G, and Site G was also

designated a "Priority 1 Florida Panther habitat."13

By contrast, the Walton Tract possesses characteristics that

the Corps considered to be significant environmental advantages.

Each of the other sites is considerably smaller than the Walton

Tract: Site D is 2,130 acres, Site E is 3,360 acres, and Site G is

2,100 acres. The Walton Tract is 6,150 acres. Thus, the site is

large enough to provide a broad natural vegetative buffer around

12
At the time the prospect sites were being evaluated, the
Bald Eagle was listed as an endangered species. However, on July
12, 1995, the Bald Eagle was formally removed from the endangered
species list and is classified as threatened.
13
"Priority 1 Panther habitat" means that the F.W.S. has
identified the areas as containing "those lands that should be
preserved first and are characterized as areas most frequently
used by panthers and/or land of high quality suitable native
habitat." F.W.S. Opinion at 13.
all sides of the landfill. The large size of the tract also allows

a substantial buffer between the landfill and adjoining areas.

Sarasota County has zoned approximately 2,971 acres on the site as

a conservation area, which includes the most valuable areas of

upland wetland habitat on the Walton Tract and adjoins other

preserve areas off-site. These preserved lands combine with

adjacent properties to form a continuous unit of potentially

suitable Florida Panther habitat and serve as a barrier between the

Myakka River ecosystem and further development from the west.

Where, as here, filling of wetlands cannot be avoided, then

"appropriate and practicable steps" must be taken to minimize the

potential adverse impacts of the discharge on wetlands. 40 C.F.R.

§ 230.10(d). While the original design of the landfill would have

impacted approximately 120 acres, Sarasota County subsequently

scaled down the project so that wetland impacts would be reduced to

approximately seventy-four acres. Furthermore, although the

project will eliminate approximately seventy-four acres of isolated

wetlands, the large size of the Walton Tract allows on-site

mitigation. Sarasota County is replacing the lost acreage with

approximately seventy acres of wet prairie habitat in the northeast

corner of the tract and enhancing and restoring an additional 262

acres of wetlands. While wetlands will be lost, a greater acreage

of higher quality wetlands will be restored and enhanced, resulting

in no net loss of wetland resources. See, e.g., National Wildlife

Fed'n v. Whistler, 27 F.3d 1341, 1346 (8th Cir.1994) (affirming

permit where no net loss of nation's wetlands); see also Town of

Norfolk, 968 F.2d at 1449; Friends of the Earth v. Hintz, 800 F.2d
822, 836 (9th Cir.1984).

In discussing the alternatives analysis, the district court

did not suggest, nor do we, that practicable alternatives may be

ignored because of the mitigation potential of a site, as the

Plaintiffs claim. To the contrary, the district court recognized,

as do we, that the Corps had taken into account all the

considerations which factor into the alternatives analysis. There

is no substantial question as to whether Sarasota County needs a

new landfill, because the County's current landfill must close in

1999. Sarasota County, the Corps, the F.W.S., and the E.P.A. all

scrutinized the project for over five years, and all agree that the

Walton Tract is the most suitable site for the new landfill.

Accordingly, insofar as the CWA practicable alternatives analysis

is concerned, we hold that the Plaintiffs failed to demonstrate

that the Corps acted arbitrarily and capriciously in granting a

permit to fill seventy-four acres of wetlands on the Walton Tract.14

2. Cumulative Impacts

Secondarily, the Plaintiffs claim that the Corps failed to

take into account the impact of its decision on the survival and

recovery of the Florida Panther "in light of the many other

projects that are currently under way or planned in South Florida."

Appellant's Br. at 40-41. This argument is meritless. The Corps'

Statement of Findings clearly indicates that the Corps gave full

14
The Plaintiffs argue that the Okeechobee landfill, which
is outside Sarasota County, is a practical alternative. The
Corps disagrees. It appears that the Okeechobee landfill lacks
sufficient capacity to handle the amount of waste anticipated to
be generated in Sarasota County and, indeed, even today has not
been expanded by its developers and cannot yet accommodate
inter-county waste.
consideration to all pertinent cumulative impacts. See A.R. 149 at

48-51. While recognizing that the project will eliminate some

potential Florida Panther habitat, the Corps also determined that

the "proposed project will not have an adverse impact on this

unoccupied habitat" because the "preservation of 2,970 acres of

land as part of the compensation for wetland impacts will preserve

the option to provide for future Florida Panther habitat [should

Florida Panthers be relocated there]." Id. The Plaintiffs'

assertion that destruction of Florida Panther habitat south of the

Caloosahatchee River increases the need to preserve it in another

region is thus met by the commitment of the 2,970 acres for future

Florida Panther habitat. In sum, the Plaintiffs have failed to

demonstrate that the Corps acted arbitrarily and capriciously in

analyzing the cumulative effects of the proposed landfill.

3. Public Hearings

The Plaintiffs' third argument under the CWA is that the

Corps violated requirements by failing to provide the public "any

hearings" on the landfill project and by failing to provide the

public with information regarding possible effects of the project

on the Florida Panther and the Eastern Indigo Snake. The CWA

mandates an "opportunity for public hearings." See 33 U.S.C. §

1344(a). However, the statute does not state that the Corps itself

must hold its own public hearings regardless of how many other

hearings have been held on a project. The applicable regulations

provide the Corps discretion to hold hearings on permit

applications on an "as needed" basis. 33 C.F.R. § 327.4. If the

Corps determines that it has the information necessary to reach a
decision and that there is "no valid interest to be served by a

hearing," the Corps has the discretion not to hold one. Id. at §

327.4(b).

Here, the Corps recognized that two public hearings on the

project had already been conducted under the state process. Given

the information generated from these hearings and the voluminous

written information submitted to the Corps by opponents of the

project, including the Plaintiffs, the Corps concluded that holding

its own additional public hearing was unlikely to generate any new

information that was not already in the Corps' possession.

Moreover, the Plaintiffs point to no such information. Under these

circumstances, we are persuaded that the Corps did not act

arbitrarily or abuse its discretion in deciding to forego further

public hearings on the matter.

The Plaintiffs also argue that the public notice provided by

the Corps was defective because: (1) it failed to specifically

state that the project could potentially affect the Florida Panther

and the Eastern Indigo Snake; and (2) it did not mention or

illustrate the creation of a three-mile access road on the Walton

Tract. These arguments are meritless. First, the notice of the

permit application was widely disseminated in June of 1990 as

required by 33 C.F.R. § 325.3(a). The notice informed the public

that "several threatened or endangered species may be expected to

be present on the site" and invited comment. Nothing in the

applicable statutes or regulations requires a species-by-species

listing in the notice, and no further notice is required by statute

or regulation.
 Second, while the Plaintiffs are correct that the public

notice did not mention the access road, the applicable regulations

give the Corps discretion about whether to issue supplemental

public notice about such matters. Such notice is to be distributed

by the district engineer "if in his view there is a change in the

application data that would affect the public's review of the

proposal." 33 C.F.R. 325.2(a)(2). The Corps considered the road

to be a minor change in the application data and declined to issue

supplemental notice. Given that the road's construction affects

less than one-half acre of additional wetlands, this conclusion was

not arbitrary or capricious.

B. Preparation of Environmental Impact Statement Under the National
Environmental Policy Act.

The Plaintiffs allege that the Corps' decision not to prepare

an Environmental Impact Statement violated NEPA and its

implementing regulations by ignoring evidence of the project's

harmful effects. The NEPA requires a federal agency to prepare an

Environmental Impact Statement if the agency proposes to undertake

a "major federal action[ ] significantly affecting the quality of

the human environment." 42 U.S.C. § 4332(2)(C). The statute

imposes procedural but not substantive requirements on the agency.

"NEPA does not work by mandating that agencies achieve particular

substantive environmental results." Marsh v. Oregon Natural

Resources Council, 490 U.S. at 371, 109 S.Ct. at 1858. Instead,

NEPA "works" by requiring that the environmental consequences of an

action be studied before the proposed action is taken. Id.

In deciding whether to prepare an Environmental Impact

Statement for a proposed action, an agency must initially determine
if the action is of a type that (1) normally requires the

preparation of an Environmental Impact Statement, or (2) normally

does not require either an Environmental Impact Statement or an

Environmental Assessment. 40 C.F.R. § 1501.4(a). If the proposed

action falls into neither category, the agency must prepare an

Environmental Assessment 40 C.F.R. § 1501.4(b). The Environmental

Assessment is expected to be a brief and concise document

containing sufficient evidence and analysis for the agency to

determine whether to prepare an Environmental Impact Statement or

a Finding of No Significant Impact ("FONSI"). "The purpose of an

[Environmental Assessment] is to determine whether there is enough

likelihood of significant environmental consequences to justify the

time and expense of preparing an environmental impact statement."

River Road Alliance, Inc. v. Corps of Eng'rs of U.S. Army, 764 F.2d

445, 449 (7th Cir.1985), cert. denied, 475 U.S. 1055, 106 S.Ct.

1283, 89 L.Ed.2d 590 (1986).

The role of the court in reviewing the sufficiency of an

agency's consideration of environmental facts is limited both by

the time in which the decision was made and by the statute

mandating review. Vermont Yankee Nuclear Power Corp. v. Nat'l

Resource Defense Council, Inc., 435 U.S. 519, 555, 558, 98 S.Ct.

1197, 1217, 1219, 55 L.Ed.2d 460 (1978). Moreover, this Circuit

has stated that a court's "only role [under NEPA] is to ensure that

the agency has taken a "hard look' at the environmental

consequences of the proposed action." Druid Hills Civic Ass'n v.

Federal Highway Admin., 772 F.2d 700, 709 (11th Cir.1985) (citing

Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730
n. 21, 49 L.Ed.2d 576 (1976)).

The Plaintiffs contend that the Corps' decision not to

prepare an Environmental Impact Statement in this case fell short

of the requisite "hard look" and that the Corps' actions were a

mere "paperwork exercise." Appellants' Br. at 43. In response,

the Corps and Sarasota County argue that the Environmental

Assessment prepared in this case satisfied the need for a hard look

at the project and that the Environmental Assessment supported the

Corps' FONSI, which obviated the need to prepare an Environmental

Impact Statement.

The Corps prepared its Environmental Assessment for the

project in April of 1995. The Environmental Assessment resulted in

a FONSI, meaning that the Corps concluded that no Environmental

Impact Statement was required for the project. At this point, the

Corps had the benefit of two separate "no jeopardy" F.W.S.

Biological Opinions regarding the Florida Panther and the Eastern

Indigo Snake, approval by the E.P.A., voluminous information

(including expert opinions) provided by the Plaintiffs, and

information resulting from the two public hearings the state had

held on the project. In light of the five preceding years of

extensive administrative review, it would be difficult for us to

conclude that the Corps failed to take a hard look at the project

before deciding to forego the time and administrative costs of

preparing an Environmental Impact Statement. Instead, we hold that

the Corps did not act arbitrarily or capriciously by concluding

that it had before it sufficient information to determine that the

project would not significantly affect the quality of the human
environment and that preparation of an Environmental Impact

Statement was therefore unnecessary. As explained by the Supreme

Court:

[O]nce an agency has made a decision subject to NEPA's
procedural requirements, the only role for a court is to
insure that the agency has considered the environmental
consequences; it cannot interject itself within the area of
discretion of the executive.

Stryker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223,

227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979) (citation and

internal quotation marks omitted).

C. Challenges Pursuant to the Endangered Species Act

The Plaintiffs claim that § 4(f) of the ESA requires the Corps

and the F.W.S. to implement the 1987 Recovery Plan for the Florida

Panther and that the Corps and the F.W.S., in violation of the ESA,
15
are failing in that regard. The Plaintiffs' reasoning can be

summarized as follows: (1) the ESA requires that recovery plans

shall be developed and implemented for endangered species; (2) the

F.W.S.'s 1987 Recovery Plan for the Florida Panther includes a

"Habitat Preservation Plan" stating that "areas proposed for

habitat preservation," which include the Walton Tract, "should be

monitored to the maximum extent possible to obviate adverse habitat

modifications;" (3) the F.W.S. fails to "implement" the Recovery

Plan if it issues a "no jeopardy" opinion for a suitable Florida

Panther habitat as specified by the Recovery Plan; and (4) the

15
Section 4 of the ESA addresses "recovery plans," which
formulate actions designed to enhance species recovery to the
point where ESA protection is no longer needed. 16 U.S.C. §
1533(f). The Secretary is required to "develop and implement"
such plans "unless he finds that such a plan will not promote
conservation of the species." Id.
Corps acted arbitrarily and capriciously in relying on the F.W.S.

"no jeopardy" Opinions in granting a permit to Sarasota County.

The Plaintiffs' line of reasoning is flawed in several

respects. First, the practical effect of the Plaintiffs' position

would be to elevate the 1987 Recovery Plan into a document with the

force of law. We cannot take such an approach. Section 1533(f)

makes it plain that recovery plans are for guidance purposes only.

See 16 U.S.C. § 1533(f). By providing general guidance as to what

is required in a recovery plan, the ESA "breathe[s] discretion at

every pore." Strickland v. Morton, 519 F.2d 467, 469 (9th

Cir.1975).

Second, the Plaintiffs' position cannot be reconciled with the

Corps' statutory duty under § 7 of the ESA to consult with the

F.W.S. about the environmental impact of proposed agency actions

and the F.W.S.'s duty to arrive at a biological opinion based upon

the best scientific data available. There would be absolutely no

point to the consultation and preparation of a biological opinion

if the F.W.S.'s opinion were predetermined based upon whether

proposed project lands fell within the borders of properties

discussed in one of any number of recovery plan documents. The

Plaintiffs thus misconstrue the interrelationship and legal effect

of the 1987 Recovery Plan on the 1995 F.W.S. Biological Opinion.

Third, the F.W.S. identified reasonable justifications for

issuing its "no jeopardy" Biological Opinions. To begin with,

there have been no verified Florida Panther sightings either on the

Walton Tract or near it within the last ten years. According to

the Florida Panther Habitat Protection Plan ("HPP"), there is no
 16
occupied Florida Panther territory anywhere in Sarasota County.

The HPP concludes, some anecdotal evidence notwithstanding, that no

occupied Florida Panther habitat exists in Sarasota County or, for

that matter, anywhere north of the Caloosahatchee River. Moreover,

the contested land has not been designated as critical habitat

under the ESA. It is a major flaw in the Plaintiffs' argument to

assume that the project will destroy or adversely modify the

Florida Panther's "critical habitat" when it has not been

determined that this particular site is a critical habitat. The

land included in the HPP's recommendation for a critical habitat

designation area is not anywhere in Sarasota County. In addition,

the Walton Tract has not been identified as a reintroduction site

for Florida Panthers, nor is it adjacent to any such sites. See

F.W.S. Opinion at 20-21. Because the Walton Tract is not in

proximity to areas of known Florida Panther use, it does not

possess an important characteristic of areas suitable for Florida

Panther reintroduction.

In summary, because the Recovery Plan is not a document with

the force of law divesting all discretion and judgment from the

F.W.S., and because the F.W.S. identified reasonable justifications

for issuing "no jeopardy" Biological Opinions with respect to the

Walton Tract, we hold that the Plaintiffs have failed to meet their

burden of demonstrating that the F.W.S. acted arbitrarily and

capriciously by issuing the Opinions. Likewise, we hold that the

Plaintiffs have failed to show that the Corps acted arbitrarily and

16
The HPP was developed and approved in November, 1993, to
implement the Florida Panther Recovery Plan.
capriciously by relying on these Opinions when consultation with

the F.W.S. is exactly what is required by the relevant statutory

scheme.

D. Disallowing Discovery

At oral argument on the cross-motions for summary judgment,

the Plaintiffs presented a government document demonstrating

contact between Senator Bob Graham and the United States Department

of Justice. The document is a memorandum providing an account of

a meeting that was held between the Corps and Sarasota County

during the time that the landfill permits were suspended while the

F.W.S. and the Corps completed the new § 7 consultation that was

initiated as a result of the Plaintiffs' lawsuit. The memorandum

states that Senator Graham "had contacted the Attorney General"

with regard to the litigation, and that "Sen. Graham was working to

see if [the Department of] Justice would withdraw [a]

recommendation" that a draft environmental assessment be made

available for public comment. See # A.R. Tab 137. At oral

argument, the Plaintiffs' counsel brought this document to the

attention of the district court and requested that, should the

court deny the Plaintiffs' motion for summary judgment, the

Plaintiffs be permitted to take discovery on the extent to which

Senator Graham's involvement may have influenced the agencies'

decisions in this case, particularly the Corps' decision not to

prepare an environmental impact statement. The district court

denied this discovery request. The Plaintiffs claim that this

denial was improper. We conclude that the district court's order

denying discovery must stand because it was not an abuse of
discretion.

None of the cases upon which the Plaintiffs rely provides a

basis for permitting discovery on the issue involving the

memorandum from Senator Graham. For example, in ATX, Inc. v.

United States Department of Transportation, 41 F.3d 1522, 1527

(D.C.Cir.1994), members of Congress strongly voiced opposition to

ATX's airline application to the Department of Transportation

("D.O.T."). Several members of Congress wrote letters directly to

D.O.T. Secretary Federico Pena urging him to deny the ATX

application, and the record contained letters from over 125 members

of Congress to other transportation department officials. Id. In

holding that the congressional pressure was insufficient to

invalidate D.O.T.'s adjudication, the D.C. Circuit noted that "

"the proper focus is not on the content of congressional

communications in the abstract, but rather upon the relation

between the communications and the adjudicator's decision-making

process.' " Id. (citation omitted). There, as here,

"congressional input neither created an appearance of impropriety

nor actually affected the outcome." Id. As discussed in Section

IV.B of this opinion, it is clear that the Corps' decision not to

complete an environmental impact statement was based on the merits

of this case. Furthermore, the legal issue raised in the

controversial memorandum—whether to circulate a draft environmental

assessment for public comment—is irrelevant. Even if such a

recommendation had been made and withdrawn, there is no legal

requirement that an environmental assessment be circulated publicly

and, in fact, they rarely are. Thus, the district court did not
abuse its discretion when it disallowed discovery on this issue.

V. CONCLUSION

Based upon the foregoing, we hold that the Corps and the

F.W.S. did not act arbitrarily and capriciously in any of their

decisions in this case, and that the district court did not abuse

its discretion in disallowing discovery on the issue involving the

memorandum from Senator Graham. Accordingly, we affirm the

district court's grant of summary judgment in favor of the

Defendants. Nevertheless, we are remanding the case to the
district court to enable the court to resolve a motion pending

before it.17 In light of the limited purpose of this remand, we see

no need to assign this case to a different judge on remand.

Accordingly, the Plaintiff's request for reassignment is denied.

See United States v. Torkington, 874 F.2d 1441, 1447 (11th

17
As we understand it, currently there is a motion pending
in the district court to delete the first footnote in its October
12, 1995 Order. We remand this case for the limited purpose of
enabling the district court to resolve this motion. We are
disturbed by the language contained in the disputed footnote.
See District Court Order at 1 n. 1. As discussed above, the
Plaintiffs requested at oral argument that they be permitted to
take discovery on the issue of whether Senator Bob Graham had
improperly intervened on behalf of the County. This request was
supported by a memorandum the Plaintiffs presented that stated
that Senator Graham was "working to see if" the Justice
Department would withdraw a recommendation that an environmental
assessment be publicly circulated. The district court engaged in
a harsh rebuke of the Plaintiffs' counsel for even making this
discovery request, calling it a "defamation of Senator Graham"
and indicating that counsel would be held in contempt if she
continued. Our careful review of the record persuades us that
this language was unwarranted and completely unnecessary to the
district court's disposition of this case. The Plaintiffs'
counsel was wholly within her rights in this case to request
discovery on the issue of Senator Graham's involvement. Because
there is a motion pending before the district court, we direct
the district court to take a second look at the footnote and
consider deleting it.
Cir.1989) (identifying elements to be considered in determining

whether to reassign a case to a different judge).

AFFIRMED and REMANDED.