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Case 1:08-cv-01624-WJM-NRN Document 166 Filed 03/18/19 USDC Colorado Page 4 of 12 <br /> the Pinon Ridge Mill would require water as part of its milling <br /> operations. DOE does not, however, estimate the mill's <br /> water requirements, nor the water requirements of the non- <br /> ULMP uranium mines it predicts will come into existence. <br /> Id. (citations omitted; alterations in original). "Notably," the Court added, <br /> DOE does not claim that it lacks information from which it <br /> can reasonably estimate the amount of water the Pinon <br /> Ridge Mill will likely consume, or the amount of water non- <br /> ULMP uranium mines will likely consume. The Court is <br /> therefore compelled to presume that DOE possesses the <br /> necessary information. <br /> Id. at 1274. <br /> With the ability to predict all water consumption associated with renewed mining <br /> on the ULMP tracts—whether caused by DOE's decision to resume mining there, or <br /> simply coinciding with it and reasonably foreseeable to occur—the Court held that DOE <br /> had acted arbitrarily and capriciously by relying on FWS's resulting BiOp, knowing that <br /> the BiOp was formulated with materially incomplete information. Id.; see also id. at <br /> 1272 ("An agency acts `not in accordance with law,' 5 U.S.C. § 706(2)(A), when it fails <br /> to convey material information in its possession to FWS, and the agency behaves <br /> arbitrar[ily] and capriciously when it relies on a BiOp resulting from a materially defective <br /> consultation."). "Fortunately," the Court continued, <br /> the remedy in this circumstance does not require total <br /> vacatur . . . . Instead, the Court will leave the existing <br /> injunction in place, for the time being, and order DOE to <br /> reinitiate consultation with FWS based on a supplemental <br /> BA. The supplemental BA may be limited solely to the <br /> question of water depletion based on DOE's estimates of the <br /> likely combined annual water usage of ULMP mines, non- <br /> ULMP mines likely to become operational, and the Pinon <br /> Ridge Mill. Upon receiving FWS's response (presumably an <br /> additional or supplemental BiOp), DOE may then issue an <br /> updated or supplemental ROD [i.e., record of decision] and <br /> move once again to dissolve the injunction. Such a motion <br /> 4 <br />