ELR Citation: ELR 20204
No(s). 3:07-md-01 (M.D. Fla. Jul 21, 2010)

A district court dismissed various parties' NEPA and ESA claims against the FWS and the U.S. Army Corps of Engineers in connection with operations at the southernmost dam in the Apalachicola-Chattahoochee-Flint River Basin system. The FWS' biological opinion contained incidental take statements for the Gulf sturgeon, purple bankclimber mussel, and fat threeridge mussel. Although the parties may have disagreed with the FWS' conclusions, the incidental take statements were supported by the record and are not arbitrary and capricious. Nor did the Corps' and the FWS' focus on the interim operations plan improperly "segment" the Corps' basinwide actions in violation of the ESA. And the NEPA claims concerning the interim operations plan are prudentially moot. It makes little practical sense for the Corps to dedicate its limited resources to developing an EIS for a plan that is destined to be replaced within two years.

[A prior decision in this litigation can be found at 39 ELR 20160.]