Federal Court Finds Corps’ Decision To Permit Development Of Florida Wetlands Violated Federal Law

Sierra Club v. Van Antwerp, No. 07-1756, 2010 U.S. Dist. LEXIS 64650 (D.D.C. Jun. 30, 2010) involved a proposed multi-use development project near Tampa, Florida, known as the Cypress Creek Town Center. The project site partially encompassed wetlands and thus required special fill permits under the Clean Water Act (“CWA”) prior to development. After conducting an Environmental Assessment, the Army Corps of Engineers (“Corps”) issued a “Finding of No Significant Impact” under the National Environmental Policy Act (“NEPA”) and issued a fill permit in May 2007. Project development began shortly thereafter. Several months later, plaintiffs filed suit alleging violations under NEPA, the CWA, and the Endangered Species Act (“ESA”). In the interim however, site construction resulted in the discharge of turbid, silt-laden water into Cypress Creek in violation of the Corps-issued permit. After an initial suspension of the permit by the Corps and an investigation into the discharges, a slightly modified permit was re-issued after the Corps found that the discharges were the result of human error rather than a flaw with the permit itself. Plaintiffs continued with their legal claims asserting that the Corps: (1) violated NEPA by failing to prepare an Environmental Impact Statement (“EIS”) and failing to take a “hard look” at adverse impacts and potential alternatives; (2) violated the CWA by failing to require practicable alternatives and “arbitrarily and capriciously” deciding there would be no degradation to a nearby creek and its wetlands and no violation of state water quality standards; and (3) violated the ESA by failing to obtain formal consultation on the development’s impact on protected species.

In what was noted as a “disturbing pattern”, the Court found that, while the Corps took the required “hard look” at potential environmental concerns, its determination that there would not be significant environmental impacts, and thus no EIS required, was so contrary to the record that it amounted to an arbitrary and capricious decision. NEPA requires an EIS when “any significant environmental impact might result”. Here, the Court noted that the project site was located directly on wetlands in an ecologically critical area. Because the Corps erroneously concluded that the project would have no environmental impact, its conclusion that the project would also not have cumulative impacts was also struck down. An EIS was also required on the basis of the project’s potential to adversely affect the habitats of certain protected species.

Evaluating the CWA claims, the Court further held that the Corps failed to act in accordance with the law when it approved the permit because the applicant failed to show that there were no practicable alternatives less damaging to the aquatic ecosystem. While the Corps did lawfully determine that the modified permit would not violate water quality standards, the Corps impermissibly allowed the permit applicant to use mathematical manipulation to show that practicable alternatives were unavailable.

While NEPA and CWA violations were found, the Court concluded that neither the Corps nor the Fish and Wildlife Service (“FWS”) violated the ESA. The record before the Court did not establish that the site was actually occupied by certain species of concern, or, if it were, sufficient mitigation measures were in place against any net loss of habitat. Discussing the site’s species mitigation measures, the Court limited its role by noting that, while controversy exists about the efficiency of wetland mitigation, it is not the role of the court to resolve scientific disputes.