The opinion of the court was delivered by: Murphy, District Judge
Plaintiff American Bottom Conservancy (ABC) is a not-for-profit corporation dedicated to the preservation of the environment in the metropolitan area known as the "Metro East."*fn1 In this case, ABC challenges -- under the Administrative Procedure Act (APA) -- a permit issued by the United States Army Corps of Engineers (the Corps)*fn2 to Waste Management of Illinois (Waste Management) pursuant to Section 404 of the Clean Water Act, 33 U.S.C. § 1344 (CWA § 404). Currently before the Court are cross-motions for summary judgment and a motion to strike.
Since 1984, Waste Management has operated the Milam Recycling and Disposal Facility (Milam RDF) -- in common parlance, a landfill -- in Madison, Illinois. It provides disposal capacity to Madison, Monroe, and St. Clair Counties and to the St. Louis metropolitan area. Milam RDF is estimated to reach capacity in 2012. During its remaining landfill life, Milam RDF will require approximately 2,000,000 cubic yards of soil for daily, intermediate, and final cover. Although Milam RDF uses various Alternative Daily Cover as permitted when operationally possible, it still requires borrowing soil from another area. Waste Management owns over 200 acres of adjacent property located north of the Cahokia Canal, which discharges into the Mississippi River, and northeast of Milam RDF. Waste Management proposes to develop and operate a 180-acre expansion of the existing Milam RDF, to be referred to as North Milam, to provide 17 years of disposal capacity for general non-hazardous municipal solid waste; demolition, construction, and debris waste; asbestos waste; non-hazardous permitted special waste; and non-hazardous permitted liquid waste for solidification received from Bond, Clinton, Madison, Monroe, and St. Clair Counties in Illinois; from Franklin, Jefferson, Lincoln, St. Charles, St. Louis, Warren, and Washington Counties in Missouri; and from the City of St. Louis, Missouri. The "waste disposal footprint" will encompass approximately 119 acres of the 180-acre expansion. Waste Management's ultimate plan has two phases: immediate excavation of cover soil to be used at the existing Milam RDF and later construction of a landfill at the North Milam site. Importantly, neither phase is dependent on the other; excavation for soil cover is necessary to support the existing Milam RDF regardless of whether the North Milam site is used as a landfill. (Joint Appendix (JA) 107-08, 174-75, 213, 231, 1741, 1843).
On March 25, 2005, Waste Management submitted a joint application to the Corps for a CWA § 404 permit and to the Illinois Environmental Protection Agency (the IEPA) for a permit pursuant to Section 401 of the CWA, 33 U.S.C. § 1341 (CWA § 401). The application described the proposed project as "future excavation activities in conjunction with operations at the Milam Recycling and Disposal Facility" (JA 107). A CWA § 404 permit is required for the discharge of dredged or fill material into navigable waters, including certain wetlands. 33 U.S.C. §§ 1344(a), 1362(7); 40 C.F.R. § 230.3(s)(7). A CWA § 401 permit, also referred to as a water quality certification, is a certification from the state that a discharge into navigable waters occurring in the state will comply with applicable water quality standards. 33 U.S.C. § 1341(a)(1). Waste Management was first required to obtain a § 401 permit from the IEPA before it could obtain a § 404 permit from the Corps. For purposes of this case, the IEPA is concerned with water quality standards; the Corps is concerned with any impact on wetlands.
On June 30, 2005, the Corps issued a public notice concerning Waste Management's application for a CWA § 404 permit. The notice contains the following project description.
A 222 acre parcel of vacant land, to be called North Milam, approximately 1 mile north of the existing Milam RDF is proposed to be utilized in conjunction with daily activities at the Milam RDF. The RDF has been in operation for over 2 decades and requires large amounts of soil for cover daily. Movement of soil from North Milam to RDF can be accomplished with no truck travel over public highways and a haul distance of less than 1 mile.
North Milam may also be used for RDF activities other than as a borrow area in the future as well, given its close proximity to the existing facility. The proposal includes utilization of the soil from the 222 acre site by excavations and removal of these materials. Approximately 18.4 acres of wetlands will be impacted; 9.9 acres of forested and scrub/shrub wetlands and 8.5 acres of farmed wetlands. Approximately 8.4 acres of wetlands will be avoided and preserved without impacts. (JA 85-86) (emphasis in original). The notice explains the Corps' authority to issue or deny the permit under CWA § 404 "for discharge of dredged or fill material into waters of the United States" (JA 86). On September 2, 2005, Waste Management responded to public comments compiled and submitted by the Corps and explained, as background for the project, Milam RDF's need for cover soil during the remaining landfill life. Waste Management further explained that because Milam RDF has 7 to 10 years of site life remaining, "any speculation about future uses of the subject property after Milam closes is not warranted at this time" and pointed out that local siting approval and IEPA permitting would be required by law "[i]f a landfill were to be proposed in the future." (JA 1843, 1845).
In August 2005, the United States Environmental Protection Agency (EPA) submitted comments to the Corps objecting to Waste Management's § 404 permit application on the grounds that (1) the Corps' public notice lacked important details about the wetland impacts and the proposed mitigation for the project, (2) placement of the mitigation at an offsite location within the watershed is in the public's best interest, and (3) the proposed mitigation plan is deficient. On these bases, the EPA recommended that the permit application "as proposed" be denied. (JA 1696-97). Thereafter, Waste Management submitted additional information to the Corps and revised its mitigation plan for the project to include, among other things, a five-year management and monitoring period for the mitigation area (see JA 100, 173, 178).
On July 5, 2006, the IEPA issued a public notice and fact sheet concerning Waste Management's application for a CWA § 401 certification. The notice describes the project as "[e]xcavation and removal of soil for cover material at Milam Recycling and Disposal Facility" (JA 1738). The fact sheet describes the project in more detail.
The proposed project site, to be called North Milam, is proposed to be used in conjunction with daily activities at the Milam RDF. The proposed project will excavate and remove soil from the North Milam site for use at the Milam RDF. The Milam RDF has been in operation for over 2 decades and requires large amounts of soil for cover daily. Movement of soil from the North Milam site to the Milam RDF can be accomplished with no truck travel over public highways and a haul distance of less than 1 mile. Five wetlands totaling 26.8 acres of wetlands are located on the project site. The borrow activities will impact approximately 18.4 acres of the wetlands. The remaining 8.4 acres will be avoided and incorporated in the mitigation plan for the site. Of the wetlands affects by the borrow activities, approximately 9.9 acres of forested and scrub/shrub wetlands and 8.5 acres of farmed wetlands will be impacted. Mitigation for the impacts is proposed to be on the north side of the site and on the adjacent property and will incorporate the remaining wetlands. Mitigation for other projects by the applicant has already been constructed on the adjacent property. . All of the mitigation areas will be placed in a permanent conservation easement and deeded to Madison County. (JA 1739). The fact sheet describes the project's purpose and anticipated benefits as allowing "the construction of a borrow area to generate necessary soil cover for the existing Milam RDF providing continued waste management for the community as well as economic and employment opportunities for the community" (JA 1741). The IEPA responded to comments submitted by Prairie Rivers Network, ABC, North American Butterfly Association, Webster Groves Nature Study Society, and Sierra Club (JA 1755-82).
The IEPA issued its § 401 certification to Waste Management on November 30, 2006. In the certification, the IEPA describes the project as "the excavation of wetlands in conjunction with providing soil for daily cover of a landfill" (JA 81). By its terms, the certification becomes effective when the Corps includes the conditions required by the IEPA as conditions of the requested CWA § 404 permit (JA 83).
Effective March 3, 2008, the Corps issued its § 404 permit to Waste Management, authorizing "placement of fill material into waters of the United States in conjunction with the construction of the North Milam Recycling and Disposal Facility (RDF) to be located just north of the existing Milam RDF in wetlands adjacent to Cahokia Canal near Madison, Madison County, Illinois." The permit includes seven special conditions and incorporates the conditions required by the IEPA. (JA 29-36). The Corps' Permit Evaluation, Environmental Assessment, and Decision Document dated February 27, 2008, describes the purpose for the project as providing "cover for the existing Milam Landfill Recycling and Disposal Facility and possibly utiliz[ing] the borrow area for an expanded landfill to be called North Milam RDF" and describes the need "for another landfill as well as cover for the existing landfill [as] paramount" (JA 52). On September 22, 2009, the § 404 permit was modified to include an eighth special condition that "no tree clearing will be conducted from April 1 through September 30 without prior written approval from the US Fish and Wildlife Service and US Army Corps of Engineers, Regulatory Branch, in order to avoid potential impacts to Indiana Bats" (JA 15-22). All other terms and conditions of the original permit remained unchanged.
The crux of ABC's complaint is that the Corps violated the CWA by issuing a permit authorizing placement of fill material into navigable waters in conjunction with the construction of a landfill without the IEPA having issued a § 401 certification covering construction of a landfill. In other words, the § 404 permit issued by the Corps improperly covers broader conduct than the § 401 certification issued by the IEPA. ABC contends that Waste Management cannot construct a landfill at the North Milam site because it lacks the necessary permits from the IEPA,*fn3 and Waste Management cannot destroy ...