FEDERALLY-APPROVED DESTRUCTION OF ESSENTIAL PANTHER HABITAT

VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED Hon. Thomas E. White Secretary of the Army 101 Army Pentagon Washington, D.C. 20310-0101 Hon. Gale Norton Secretary of the U.S. Department of the Interior 1849 C Street, N.W. Washington, D.C. 20240 RE: Notice of Intent to Sue Over Violations of the Endangered Species Act, Administrative Procedure Act, National Environmental Policy Act, and Clean Water Act in Connection with the Fort Myer s Mine #2. Dear Secretary White and Secretary Norton: We are writing on behalf of the National Wildlife Federation, the Florida Wildlife Federation, and the Florida Panther Society to provide you with a notice of violations of the Administrative Procedure Act ( APA ), 5 U.S.C. 500 et seq., Endangered Species Act ( ESA ), 16 U.S.C. 1531 et seq., Clean Water Act ( CWA ), 33 U.S.C. 1251 et seq., and National Environmental Policy Act ( NEPA ), 42 U.S.C. 4321 et seq. As explained below, the U.S. Army Corps of Engineers ( Corps ) and the U.S. Fish and Wildlife Service ( FWS ) have violated these federal statutes by authorizing Florida Rock Industries massive mining operation known as Fort Myers Mine #2 (Corps Application No. 199402492) without adequately assessing impacts on the Florida panther. I. FEDERALLY-APPROVED DESTRUCTION OF ESSENTIAL PANTHER HABITAT A. Southwest Florida habitat is essential for the panther s survival and recovery The Florida panther is one of the most endangered large mammals in the world. Multi- Species Recovery Plan for South Florida (FWS, May 1999) at 4-117. Population viability projections have concluded that, under prevailing conditions, the panther may become extinct within two to four decades. Id. To prevent this extinction, the U.S. Fish and Wildlife Service s ( FWS ) recovery plan calls for quickly stabilizing this last remaining population in south Florida and establishing two additional populations in the southeastern United States. Id. at 4-141. FWS has stated that achieving a self-sustaining population of the panther will require a

Page 2 minimum of 50 breeding adults, and that further habitat loss will result in a reduced population. Logan, Florida Panther Habitat Preservation Plan (Nov. 1993). Thus, the panther s final population in south Florida will not become self-sustaining unless its remaining habitat is protected. To coordinate panther recovery efforts, FWS, National Parks Service, Florida Game & Fresh Water Fish Commission, and Florida Department of Environmental Protection formed the Florida Panther Interagency Committee. In November 1993, this committee issued a Florida Panther Habitat Preservation Plan ( HPP ) identifying 1,253,000 acres of panther habitat on private land that it deemed essential for maintaining a self-sustainable population of panthers in south Florida. Logan, HPP (Nov. 1993). These acres were divided into three categories: (1) 326,000 acres of lands already in a conservation program; (2) 458,000 acres north of the Caloosahatchee River not yet occupied by any breeding population but potentially suitable for occupation by dispersing panthers; and (3) 468,000 acres of occupied areas south of the Caloosahatchee River. The committee then ranked the land not already in conservation programs as Priority 1 (frequently used or high quality habitat) and Priority 2 (less frequently used or lower quality habitat) and recommended that all such land (in order of priority ) be acquired and protected. In May 1999 FWS reaffirmed the validity of the HPP s scientific conclusions in its updated panther recovery plan, known as the South Florida Multi-Species Recovery Plan ( MSRP ). The MSRP states that protection of HPP-defined Priority habitats is a top priority recovery action, which FWS defines as an action necessary to prevent the extinction or the irreversible decline of the species. See 48 Fed. Reg. 16756 (Apr. 19, 1983). The MSRP reiterates that protecting Priority habitats is essential to maintaining a minimum viable population of 50 breeding adult panthers in South Florida." (Emphasis added.) To implement the MSRP, FWS has convened a Multi-Species/Ecosystem Recovery Implementation Team ( MERIT ) and a MERIT Panther Subteam. The Subteam, which includes FWS, has identified primary and secondary panther habitat on a Florida Panther MERIT Subteam Final Boundaries Map. This map was approved by the Subteam at its August 27-28, 2001, meeting. The MERIT and HPP maps, which largely overlap, highlight the importance of southwest Florida habitats to the survival of the panther. In fact, most of the identified habitat and currently reproducing panther populations are in three southwest Florida counties Lee, Collier, and Hendry. B. Sprawl development in and around southwest Florida panther habitat On average, roughly 40 people move to southwest Florida each day. Between 2000 and 2025, Florida s population is projected to increase 36%, i.e., from 15.23 to 20.71 million. See www.census.gov/population/projections/state/stpjpop.txt. Naples is the fifth fastest growing

Page 3 metropolitan area in the country, expanding by over 30% between 1990 and 1998. U.S. Census Bureau (Dec. 1999). Naples and Fort Myers have the first and third highest new home construction rates among metropolitan areas in the country, respectively. Naples Daily News (Aug. 27, 2000). According to the most recent Census Bureau statistics, Collier and Lee counties are both on the list of the 100 fastest growing U.S. counties with [a population greater than] 10,000. U.S. Census Bureau (Apr. 2003). In a single year, Collier County s population increased by 4.4%, and Lee County increased by 3.6%. Id. In grappling with this human population influx, Lee and Collier Counties have allowed low-density residential and golf course development to encroach relentlessly into panther habitat. In 2000, the Corps prepared a southwest Florida Environmental Impact Statement ( SFEIS ) to assess the cumulative adverse environmental effects of its permitting program under Section 404 of the Clean Water Act, which has authorized much of the sprawl development in Lee and Collier Counties. Unfortunately, although the SFEIS provides a map of panther habitat, it completely fails to address the cumulative effects of 404 permitting and other development activity on the Florida panther. Moreover, despite the fact that the SFEIS was completed in July 2000, the Corps still has not issued a Record of Decision or taken any meaningful action to change the permitting status quo. The cumulative effects of sprawl development in southwest Florida could eliminate the last remaining population of the Florida panther in the wild by (1) destroying and fragmenting essential panther habitat, (2) increasing human presence in and around remaining panther habitats, thus making the habitat unsuitable for panthers, and (3) increasing panther/vehicle collisions, which caused 22% of the radio-collared panther mortality between 1981 and 2002, see Florida Fish and Wildlife Conservation, Panther Genetic Restoration Annual Report 2001-2002, at http://www.panther.state.fl.us/news/pdf/2001-2002panthergeneticrestoration AnnualReport.pdf. As documented in the legal action entitled National Wildlife Federation v. Caldera, Case No. 1:00CV01031 (JR)(D.D.C.) and the report entitled Road to Ruin: How the U.S. Government is Permitting the Destruction of the Western Everglades (NWF et al., Nov. 2002), the Corps and FWS have permitted tens of thousands of acres of development in panther habitat without ever addressing these cumulative effects. C. The FWS and the Corps have illegally authorized a massive mining operation in panther habitat On January 30, 2002, the FWS issued a biological opinion ( BO ) concluding that a massive Florida Rock Industries mine in Lee County called Fort Myers Mine #2 would not jeopardize the continued existence of the panther. Among other inadequacies, the BO fails to even mention that the mine, which will permanently destroy 5,268 acres of panther habitat, is located in the heart of HPP-identified Priority habitat, i.e., habitat deemed by FWS to be essential for the panther s survival. Most of the land is also within the panther habitat identified as of primary importance by FWS s MERIT panther subteam. On February 6, 2003, the Corps issued an Environmental Assessment and approved the

Page 4 individual 404 permit authorizing this massive mining operation. As the Corps itself acknowledges, the 6,071-acre project site is just south of the protected area known as "Airport Mitigation Park - Site H," which was designed to mitigate the loss of panther habitat caused by the expansion of the Southwest Florida International Airport. The Corps admits that mining operations will directly impact approximately 3,677 acres of panther habitat and at least 1,592 additional acres will be indirectly affected. The Corps does not discuss the effects of the mine on the adjacent protected area and on the 802-acre wildlife corridor that would be retained on the project site. The Florida Rock mine, which involves extraction and processing of limestone to a maximum depth of 60 feet below existing grade, spans eight sections of land west to east, running from about 3 miles east of I-75 on the west to State Road 82 on the east. Mining activity will proceed in phases over about a 40-year period. Project components include an access road, a county road expansion, an administrative office, a gatehouse, scales, shop buildings, processing areas, an asphalt plant, a concrete plant, and a sand plant. II. ESA AND APA VIOLATIONS The fundamental purpose of the ESA is to conserve endangered and threatened species and the ecosystems upon which they depend for survival. 16 U.S.C. 1531(b). This conservation mandate is incorporated into sections 7(a)(2) and 7(a)(1) of the Act. As explained below, both the FWS and the Corps have arbitrarily failed to ensure against jeopardy to the panther in violation of section 7(a)(2), and the Corps has arbitrarily failed to create and carry out programs for the conservation of the panther as required by section 7(a)(1). A. FWS and the Corps violated section 7(a)(2) of the ESA and section 706(2)(A) of the APA 1. FWS violated section 7(a)(2) of the ESA and section 706(2)(A) of the APA Florida Rock applied for this permit to conduct a massive mining operation at Fort Myers Mine #2 over five years ago. Because this limestone mining operation will destroy nearly 6,000 acres of essential panther habitat and other important ecosystem functions, the FWS repeatedly refused authorization. See, e.g., Letter from FWS to Corps (April 29, 1998) ( the proposed work will have substantial and unacceptable impacts.... ). However, FWS ultimately reversed course. On January 30, 2002, the FWS issued a deeply flawed no jeopardy BO that fails to (1) make a rational connection between its conclusions and scientific information in the record, (2) discuss relevant baseline conditions, (3) discuss relevant factors relating to direct and indirect effects of the action, (4) discuss relevant factors relating to the wildlife corridor, and (5) analyze cumulative impacts. In light of these failures, FWS has acted arbitrarily and has failed to to ensure that the Florida Rock permit will not jeopardize the continued existence of the panther. a. FWS failed to make a rational connection between its conclusion that the

Page 5 panther will remain viable and facts in the record Citing the work of Roy McBride and Ulysses Seal, FWS reasoned that the 78 panthers now existing in south Florida exceed the 50 adult panthers needed to ensure a viable panther population. See BO, at 17, 19, and 29. The entire BO including its no jeopardy conclusion is then premised on the inaccurate assumption that there are already many more panthers than needed and that further losses caused by the Florida Rock permit are acceptable. FWS cites to a personal communication with McBride, dated November 2001, when it states that there are 78 panthers remaining. Our comments in the record show that FWS never spoke with McBride. Instead, it inaccurately interpreted McBride s written report, dated November 2001. This report specifically notes that at least 16 of the 78 panthers were juveniles and thus at most only 62 were adults. See McBride, Roy Current Panther Distribution, Population Trends, and Habitat Use, Report of Field Work: Fall 2000 Winter 2001 (Nov. 2001). In fact, there may be as few as 51 adults. Email from Comiskey to Jennings (FWS) (May 15, 2002). FWS never contradicted these basic facts with competing evidence. FWS misstates Seal s population viability analysis by suggesting that Seal estimates that a viable population is 50 adult panthers. In fact, however, Seal explains that a minimum viable population requires an effective population of 50 breeding adults, and that the total number of adult panthers must reach 100 to 200 before the population could arguably be considered viable. Seal et al. 1989 at 69. See also id. at 37, 62-63, 106. Here, the record shows that there were at most 62 adult panthers at the time of FWS s analysis. With only 16 to 31 of those panther representing the effective breeding population, it was arbitrary for FWS to conclude that south Florida has already achieved the effective population of 50 breeding adult panthers prescribed by Seal. No biological opinion that so vastly misstates the panther s population viability can ensure that the panther is not jeopardized. In light of this failure to utilize the best available science and to connect that science with its conclusions, the BO is arbitrary and capricious. b. The FWS fails to discuss relevant baseline conditions The environmental baseline includes the past and present impacts of all federal, state, or private actions and other human activities in the action area, the anticipated impacts of all proposed federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation process. 50 C.F.R. 402.02. The FWS may not simply recite these activities, but rather must analyze environmental conditions given the known impacts of those activities. Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 127 (D.D.C. 2001). The action area here was properly defined as the range of the Florida panther in south Florida. The BO, however, fails to mention, much less analyze the impacts of, any other projects that have been authorized in panther habitat. This would include projects relating to

Page 6 other individual 404 permits issued, as well as the Corps ongoing nationwide permit program. In fact, according to another recent BO, the Corps has issued 404 permits for development that has directly or indirectly destroyed more than 60,000 acres of panther habitat in southwest Florida. Perhaps even more disturbing, this BO omits fundamental information and analyses relating to the panthers use of the Fort Myers Mine #2. For example, the FWS acknowledges that eight panthers roughly 10 percent of the entire population are known to have used the project site or its adjacent areas. BO at 18, 21. However, it fails to address the gender, age, and breeding status of these panthers even though this information is in the record and would shed light on the importance of this habitat. Such information is essential to assess impacts on the Florida Rock permit on panther s likelihood of survival (i.e., current need for the habitat) and recovery (i.e., future need for the habitat). Even more importantly, the BO fails to mention that the mining project will permanently destroy Priority habitat, habitat deemed by FWS in the HPP to be essential for panther surivival, and that it will permanently destroy habitat deemed by FWS to be of primary importance in the MERIT mapping process. In addition, the BO virtually ignores scientific research completed after 1995. Post-1995 genetic restoration efforts have revitalized panther populations and refuted longstanding assumptions about panther habitat preferences. While acknowledging the limitations of studies completed in the 1980s and early 1990s prior to genetic restoration, the BO inexplicably excludes more recent, peer-reviewed research and field observations. See BO at 11. This pattern of omission is typified by the FWS s reliance on Maehr 1990 for its estimates of the current occupied range of the panther, without mention of either the 1993 HPP s discussion of occupied habitat or Panther Subteam member R.T. McBride s published report, Current Panther Distribution and Habitat Use, documenting field observations from the 2000-2001 field capture season. See BO at 12 (emphasis added). FWS clearly has not used the best available science as required by the ESA to evaluate the effects of this mining operation on the panther, and it has not made a rational connection between its no jeopardy conclusion and the undisputed scientific facts. c. The FWS fails to discuss relevant factors relating to direct and indirect effects of the action The FWS must consider the effects of the action, i.e., the project's immediate impacts on the species (direct effects) and those impacts that are reasonably certain to occur in the future (indirect effects) together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. 50 C.F.R. 402.02. The BO must include an analysis of the effects of the action on the species when added to the environmental baseline [i.e.,] an analysis of the total impact on the species. Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 128 (D.C. Cir. 2001) (emphasis in

Page 7 original). When discussing the effects of this massive mining operation, the FWS acknowledged that the proposed action will (1) contribute to the permanent loss and fragmentation of panther habitat, (2) contribute to the permanent loss and fragmentation of habitat that supports panther prey, (3) limit available habitat for dispersing sub-adult panthers, potentially contributing to an increase in aggression between, and mortality of, sub-adult male panthers, (4) restrict the geographic distribution of the species, and (5) permanently protect and enhance panther habitat. FWS did not, however, analyze and evaluate these effects in the context of the environmental baseline, which is a severely depleted and degraded habitat base. It was irrational for FWS to, with one hand, approve a project that it acknowledges will destroy and fragment thousands of acres of habitat, and with its other hand send out alarms that the panther cannot tolerate further erosion of its habitat base. The BO fails to discuss the many ways that the large mining site with its associated noise, light, and pollution will directly impact panthers. It also fails to consider how expanding roads and development resulting from this project will indirectly affect the panther. Increased residential development made possible by this mining project likely will lead to the expansion and extension of area roadways by local and state governments. While acknowledging elsewhere in the biological opinion that vehicular collision is the most documented cause of panther mortality, the FWS does not explore how this project will affect vehicular mortality. See BO at 25. Nowhere does the BO address the effects that may flow from development of this land once mining is complete. Former mining lands are especially prized by subdivision and golf course developers for their water features that form in recessed mining pits. In addition to affecting the panther habitat surrounding the project, this development would likely affect the wildlife corridor and airport mitigation park directly adjacent to the project. FWS asserts in its BO that some sub-adult males may be lost from the population without affecting overall reproductive success because established adult males are available to mate with all known females. For several reasons, this conclusion is at odds with the facts in the record. First, a major concern associated with small population biology is the possible loss of unique genetic material when any individual is killed, including sub-adult males, who could enter the breeding population in the future. Second, transient sub-adults in a monitored population could someday be translocated to reintroduction sites, preserving their genetic input to the subspecies and contributing to the recovery goal of population expansion. If habitat for transients is lost, aggressive encounters between transients and resident panthers will increase, resulting in injuries and deaths to both breeding and sub-adult panthers. Third, the fact that sufficient males are currently available to fill male vacancies in panther breeding units on private land is not a good justification for considering transient males expendable. Males are available because habitat is available for transients. If this habitat is not protected, the risk that males are not available during the breeding season increases, thus further threatening future breeding units

Page 8 on private land. d. The BO fails to discuss relevant factors relating to the wildlife corridor Another flaw with the BO is that it fails to examine how the proposed wildlife corridor adequately mitigates for the loss of 5,269 acres of panther habitat. It offers no analysis of the location and physical dimensions of the 802-acre wildlife corridor or its potential to serve as a buffer against the disturbance of the mine activity. It does not explain how this corridor is currently used, and how this use would differ if it was not conserved by Florida Rock. Moreover, it never explains how this corridor will be affected by surrounding development. Unless precautions are taken, nearby projects could render this corridor useless. FWS arbitrarily failed to explain the basis for finding that the 802-acre wildlife corridor will sufficiently mitigate for the permanent loss of 5,269 acres of essential panther habitat. e. The BO lacks a meaningful cumulative impacts analysis Cumulative effects are effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area.... To ensure against jeopardy, FWS must analyze the cumulative effects and explain how these effects and the effects of the action will not jeopardize any endangered species. Greenpeace v. Nat l Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1149 (W.D. Wash. 2000). Here, the FWS failed to consider the extensive cumulative impacts of the Fort Myers Mine #2 in conjunction with nearby projects. The Cumulative Effects section has two paragraphs one of which is devoted to defining cumulative effects. The remaining 6-sentence paragraph states only that the State will issue permits in the action area further eliminating, fragmenting, or degrading panther habitat, that these permits may be responsible for a 64% loss of panther habitat on private lands, and that the number of panthers affected cannot be determined since these lands have never been surveyed for panthers. BO at 30-31. FWS arbitrarily failed to analyze these and other cumulative impacts and explain the connection between these impacts and its no jeopardy finding. 2. The Corps Violated the No Jeopardy Requirement by Adopting the FWS s Analysis The Corps duty to ensure that its actions will not jeopardize a listed species goes beyond simply consulting with FWS; its decision to rely on FWS s BO must not be arbitrary or capricious. Pyramid Lake Paiute Tribe of Indians v. Dep t. of the Navy, 898 F.2d 1410, 1415 (9 th Cir. 1990). Here, after the biological opinion was issued in January 2002, the Corps learned of numerous inaccuracies and inadequacies with the BO and about new panther information. For example, in February 2002, the Florida Fresh Water Fish Conservation Commission released new telemetry data. In May 2002, panther expert Jane Comiskey submitted a detailed list of the

Page 9 BO s inadequacies and inaccuracies. In June 2002, the National Wildlife Federation and the Florida Wildlife Federation submitted 12 pages of comments outlining the BO s deficiencies. A biologist from Arizona State University, Dr. David Bruce Lewis, also submitted comments in June 2002 explaining the BO s inadequacies. The MERIT Panther Recovery Subteam continued to meet and develop a recovery strategy for the panther, as evidenced by their 13-page Meeting Summary from October 22-23, 2002. On January 13, 2003, Dr. Comiskey drafted comments to the FWS on the FWS Panther Conservation Strategy. Nonetheless, on February 6, 2003, more than a year after the BO was issued, the Corps arbitrarily relied on the faulty and outdated BO and issued the 404 permit. As such, the Corps violated section 7(a)(2) of the ESA and section 706(A)(2) of the APA. B. The Corps has failed to carry out programs for the conservation of the panther in violation of section 7(a)(1) of the ESA and section 706(A)(2) of the APA Section 7(a)(1) of the ESA requires the Corps to create a program for the conservation of the panther, and to consult with FWS regarding its proposed program. 16 U.S.C. 1536(a)(1). Here, there is no evidence that the Corps ever created an organized conservation program for the panther, or that the Corps ever consulted with the FWS regarding such a program. Although FWS has made conservation recommendations in connection with a handful of biological opinions, it has not consulted with the Corps regarding potential programs for the conservation of the panther. The Corps failure to develop a program for the panther, or to consult with the FWS regarding one, violates section 7(a)(1) of the ESA and 706(A)(2) of the APA. III. CWA AND APA VIOLATIONS The Clean Water Act ( CWA ) prohibits the discharge of any pollutant, including dredged or fill material, into navigable waters unless authorized by a CWA permit. 33 U.S.C. 1311(a). Pursuant to section 404(b)(1) of the CWA, the Environmental Protection Agency and the Corps issued binding Guidelines, imposing specific restrictions on such discharges. Specifically, these regulations prohibit individual 404 authorizations where (1) ESA violations occur, (2) practicable alternatives exist, (3) a discharge contributes to significant degradation of the aquatic environment, or (4) adverse impacts are not minimized. 40 C.F.R. 230.10. The Corps may not issue any permit unless there is sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with [the 404(b)(1)] Guidelines. Id. 230.12(a)(3)(iv). The massive mining operation here does not satisfy these Guidelines. First, because the Corps violated the ESA, the first prong above has not been satisfied. Second, the Corps failed to determine whether there were practicable, environmentally preferable, alternatives. Id. 230.10(a). For activities that are not water dependent, such as the mining activity here, the regulations create a strong presumption that there are, in fact,

Page 10 practicable and environmentally preferable alternatives to discharging dredged and fill material into wetlands and other special aquatic sites. Id. 230.10(a)(3); 40 C.F.R. 230.3(q-1) and 230.41. In addition, practicable alternatives that do not involve discharges into wetlands are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise. 40 C.F.R. 230.10(a)(3). In the Corps Environmental Assessment of this mining operation, it explains that other large tracks of land in the [southwest Florida] region do not have the aggregate concentrations, support large percentages of wetlands, have endangered species concerns, have been previously permitted for residential development, or are being mined by other mining companies. EA at 9. This proposed site too, however, has a large percentage of wetlands and endangered species concerns. The Corps must evaluate and compare the surrounding areas in more detail; it cannot rely on sweeping, unsupported statements. Moreover, although limestone is located throughout Florida (and throughout the United States), the Corps did not consider alternatives beyond the southwest Florida region. Although the costs of transporting limestone may be high, such alternatives may not be dismissed without any analysis. As such, the Corps has not adequately rebutted the presumption that an adequate alternative exists and has thus violated the CWA Guidelines and the APA. Third, the Corps failed to ensure that this massive mining operation would not significantly degrade the aquatic environment. When analyzing the impacts, the Corps must determine (in writing) the short and long-term effects of the proposed discharge on the physical, chemical, and biological components of the aquatic environment. Id. 230.11. Such written findings must include an analysis of the cumulative and secondary effects on the aquatic ecosystem. Id. 230.11 (g), (h). Finally, the Corps failed to minimize the impacts of this mine as required by both the Guidelines and the 1990 Corps/EPA Mitigation Memorandum of Agreement (Mitigation MOA). Both documents articulate a clear requirement for sequential mitigation: avoid impacts to the maximum extent practicable, minimize impacts, and provide compensatory mitigation for unavoidable wetland losses that provide full functional replacement for impacted wetlands. The southwest Florida Final EIS ( SFEIS ) confirms that these avoidance and minimization requirements should be strictly construed and complied with in the key natural resource areas identified in the SFEIS.

Page 11 IV. NEPA AND APA VIOLATIONS The National Environmental Policy Act ( NEPA ) requires federal agencies proposing any "major Federal action[] significantly affecting the quality of the human environment" to prepare an Environmental Impact Statement ( EIS ). 42 U.S.C. 4332(2)(C) (emphasis added). When evaluating whether an action is significant, one must consider: (1) whether the action is related to other actions with individually insignificant but cumulatively significant impacts, (2) the unique characteristics of the area, (3) the degree to which the action may adversely affect an endangered species, and (4) the degree to which the effects are likely to be highly controversial. 40 C.F.R. 1508.27. Here, despite (1) the severity of the direct, indirect, and cumulative impacts from this mine, (2) the presence of endangered species and the glaring flaws with the biological opinion (as identified in NWF s 12-page comment letter), (3) the uniqueness and importance of the natural resources on the site, and (4) the controversy regarding the project s impacts, the Corps arbitrarily refused to prepare an EIS. Instead, it prepared an EA and a FONSI on this massive mine project. This 28-page EA is insufficient. First, the cumulative and secondary effects analysis is wholly inadequate. As stated above, significantly is defined as those actions with individually insignificant but cumulatively significant impacts. 40 C.F.R. 1508.27(b)(7). Thus, significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Id. Cumulative impact, in turn, is defined as: the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. at 1508.7. While Florida Rock s EA lists many of the relevant impacts, it makes no attempt to evaluate these impacts. EA at 13, 24-26. The EA acknowledges that the project will provide a source for sand and shell fill material that can be used for fill in future regional subdivisions, shopping malls, and roadways. EA at 13. Fort Myers Mine #2 will provide minerals for the production of cement, and aggregate for the production of concrete, all of which can play a role in the overall development of southwest Florida. Id. Stunningly, the EA asserts that without the mine, southwest Florida will not develop, id., without ever discussing the development that will be stimulated by the mine. The Corps must fully define and analyze the effects from this development. It must also address impacts from the numerous currently pending projects encroaching on Corkscrew Regional Ecosystem Watershed lands and panther habitat. See 40 C.F.R. 1508.8(b). The Corps has not taken the requisite hard look at these cumulative and secondary impacts. Second, the Corps endangered species discussion was inadequate and inaccurate. It never states that over 5,200 acres of panther habitat will be permanently destroyed. Moreover, when acknowledging that Florida Rock is in HPP Priority 2 habitat, the Corps erroneously

Page 12 explains that Priority 2 habitat is not so good. EA, at 21. According to the EA, it is critical that one is not misled by the Priority classification, [i.e., one should not assume] that the Florida Rock Mine parcel lies in the second best type of habitat. Id. In fact, however, although Priority 2 lands are less frequently used by panthers, they are nonetheless considered essential for maintaining a self-sustaining population of panthers and according to the HPP, they should be preserved. HPP, at 33. Contrary to the Corps assertions, Priority 2 habitat is the second best type of habitat. This mischaracterization is indicative of the lack of informed analysis throughout the EA. Third, the Corps itself has acknowledged that southwest Florida contains valuable natural resources and calls for thorough environmental reviews of development affecting these resources. According to the Corps Final southwest Florida Environmental Impact Statement, this massive mine is located in an area where changes in land cover and land use will likely harm important natural resources and cause unacceptably high cumulative adverse environmental impacts. See SFEIS Natural Resource Overlay Map at Appendix H, at 3. In fact, the mine potentially impacts at least five important resources of concern. Fort Myers Mine #2 is situated near key historic flowways (Flowways Map, at 15), key habitat connection areas (Habitat Fragmentation Map, at 16), in Florida panther habitat (Florida Panther Map, at 18), in a Strategic Habitat Conservation Area (Strategic Habitat Conservation Areas Map, at 23), and in a basin with degrading water quality (Water Quality 303(d) and Water Quality EIS Basins Maps, at 26-27). Finally, the Corps should have prepared an EIS because the impacts of this project are highly controversial. Federal and state agencies, biologists, and environmental organizations expressed considerable concerns over the project. The EPA recommended denial of the permit application on May 6, 1998, June 3, 1998, September 13, 2001, and again on February 22, 2002. EPA finally concurred on May 1, 2002. The FWS expressed concerns in letters dated April 8, 1998 and April 29, 1998. It finally approved the project in its biological opinion dated January 30, 2002. The National Marine Fisheries Service expressed concerns on April 8, 1998. On April 9, 1998, the Florida Game and Freshwater Fish Commission expressed concern for wildlife habitat, post-mining reclamation of the site, and species of special concern. On June 7, 2002, the NWF and Florida Wildlife Federation, in consultation with panther biologist Dr. Jane Comiskey, outlined inadequacies and inaccuracies in FWS s biological opinion on the Fort Myers Mine #2 and recommended that the public comment period (which was from March 9 to April 9, 1998) for this project be reopened. On June 20, 2002, Dr. David Bruce Lewis, with the Center for Environmental Studies, Arizona State University, also submitted comments to the Corps detailing how the FWS s information in the BO was insufficient, and that its synthesis of the existing information was inadequate. On October 30, 2002, NWF and the Florida Panther Society submitted comments regarding FWS s and the Corps review of pending projects (including this Florida Rock Mine) in panther habitat. Despite our pleas, the Corps refused to reopen this public comment period. Instead, the Corps issued its EA on the same day that it issued Florida Rock s permit. This is precisely the type of controversial action for which an EIS must be prepared. See Friends of the Earth v. Corps of Engineers, 109 F. Supp. 2d 30 (D.D.C. 2000).

Page 13 NEPA requires the Corps to do a project-specific EIS, and take a hard look at the project s individual and cumulative impacts and alternatives. Issuing a permit which will destroy priority panther habitat, further constrict historic flowways, and further degrade the state and federally protected Estero Bay and upstream impaired waters is clearly a major federal action which will significantly affect the environment. 42 U.S.C. 4332(2)(C). The Corps FONSI concluding to the contrary was arbitrary and capricious. V. CONCLUSION We urge FWS and the Corps to remedy the legal deficiencies outlined above. At a minimum, the following steps are necessary: 1. The Corps must revoke the Fort Myers Mine #2 permit and reinitiate formal section 7 consultation with the FWS. The FWS must reassess the individual and cumulative impacts that this mine will have on the panther and its habitat. Both agencies must ensure that they are not jeopardizing the existence of this endangered animal. 2. The Corp must create and carry out a program for the conservation of the panther. It must also consult with the FWS regarding this program. 3. The Corps must prepare an EIS and an adequate CWA assessment of this massive mining permit, thus taking a hard-look at the project s individual and cumulative impacts and alternatives. If these steps are not taken, we intend to initiate a lawsuit to protect the Florida panther. Sincerely, John F. Kostyack Senior Counsel National Wildlife Federation Randy Sargent Counsel National Wildlife Federation