City of Dania Beach v. U.S. Army Corps of Eng’rs, CASE NO. 12-60989-CIV-COHN/OTAZO-REYES

Decision Date22 July 2013
Docket NumberCASE NO. 12-60989-CIV-COHN/OTAZO-REYES
PartiesCITY OF DANIA BEACH, FLORIDA, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, Defendant, and BROWARD COUNTY, FLORIDA, Intervenor/Defendant.
CourtU.S. District Court — Southern District of Florida
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING
DEFENDANT U.S. ARMY CORPS OF ENGINEERS' CROSS MOTION FOR
SUMMARY JUDGMENT; GRANTING DEFENDANT/INTERVENOR BROWARD
COUNTY'S CROSS MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Plaintiffs' Motion for Summary Judgment [DE 53] ("Plaintiffs' Motion"), Defendant/Intervenor Broward County's Cross-Motion for Summary Judgment [DE 57] ("Broward County Motion"), and Defendant U.S. Army Corps of Engineers' Cross-Motion for Summary Judgment [DE 59] ("Corps Motion) (collectively "Motions"). The Court has carefully considered the Motions, the replies thereto, the administrative record1 , and is otherwise fully advised in the premises.

I. BACKGROUND
A. Procedural History.

Plaintiffs City of Dania Beach, Rae Sandler, and Grant Campbell (collectively "Plaintiffs") filed suit against Defendant U.S. Army Corps of Engineers (the "Corps") on May 23, 2012. Complaint [DE 1]. The Complaint challenged a permit the Corps issued which allowed Defendant/Intervenor Broward County2 to fill approximately 8.87 acres of wetlands and secondarily impact 39.17 acres of wetlands in order to expand Runway 9R/27L ("South Runway") at the Fort Lauderdale-Hollywood International Airport (the "Airport"). Id. ¶ 1. Plaintiffs contended that the Corps issued the permit without considering the impact of increased noise levels on the health of residents in neighborhoods in the City of Dania Beach, thus violating both the National Environmental Policy Act ("NEPA") and the Clean Water Act ("CWA"). Id. ¶ 2. Plaintiffs further argued that the Corps authorized the permit for the South Runway despite another practicable alternative, namely a north parallel runway ("North Runway"), which would have resulted in less noise and environmental impacts. Id. ¶ 3.

On May 24, 2012, Plaintiffs filed a motion for preliminary injunction to enjoin further construction of the South Runway while the Court considered Plaintiffs' Complaint on the merits. See DE 4. The Court denied the motion for preliminary injunction on July 6, 2012. See DE 30. Additionally, the Court found that Plaintiffs were collaterally estopped from arguing that the North Runway alternative presents apracticable alternative for the Airport's expansion plans. See DE 30 at 14-15. On August 20, 2012, Plaintiffs filed an Amended Complaint. See DE 41. In the Amended Complaint, Plaintiffs seek a declaration from this Court that the permit issued by the Corps violates NEPA, the CWA, and the Administrative Procedure Act ("APA"), to vacate the Corps' record of decision and the permit, and to enjoin the Corps and Broward County (collectively "Defendants") from any further construction of the South Runway until it complies with NEPA, the CWA, and the APA. Am. Compl. at 17. The parties have now filed cross motions for summary judgment.

B. Relevant Facts.

In 1994, expansion of runways at the Airport was proposed to accommodate existing and projected demand. AR 05124-25. In 1996, the Federal Aviation Administration ("FAA") began NEPA review of the proposed expansion. Id. As the lead agency, the FAA, coordinating with other federal, state, local, and tribal entities, prepared an environmental impact statement ("EIS") regarding the potential environmental impacts of the proposed runway expansion project. AR 06128; 06331-33. The Corps participated in the EIS process, offering expertise on impacts to wetlands and other matters within the Corps' jurisdiction. See, e.g., AR 00011-12; 00013-20; 00041-44; 06239; 06308; 06311; 06322; 06331-33; 21671.

The City of Dania Beach provided studies to the FAA regarding aviation noise and its potential health impacts. AR 17569-75. FAA responded to these comments, along with many hundreds of others from Dania Beach and other parties. See AR 03799-4660; 04702-05031. After approximately thirteen years of ongoing environmental review, the FAA released the final environmental impact statement("FEIS") in June 2008 and thereafter the Record of Decision ("ROD") in December 2008. AR 00048-6221; 06232-823. The City of Dania Beach challenged the ROD in the Court of Appeals for the District of Columbia, arguing that the FAA's determination that the City's preferred expansion option, Alternative C1, was impracticable was arbitrary and capricious and that FAA should have selected a different runway expansion alternative. The Court of Appeals upheld the FAA's decision. City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir. 2010); AR 13198-226.

Broward County then applied for a permit to fill approximately 8.87 acres of wetlands for the expansion of Runway 9R/27L at the Airport. AR 10822-13197. The Corps provided the first public notice for the permit on March 1, 2011. AR 13365-89. On March 29, 2011, in response to the first public notice, Plaintiffs' counsel submitted to the Corps a six page letter, AR 16834-39, and enclosed over three thousand pages of materials. AR 13611-16833. Although the public comment period was scheduled to close on March 31, 2011, the Corps extended the comment period for an additional two weeks. AR 16885. During the extended public comment period, Plaintiffs' counsel sent another letter to the Corps, enclosing the same noise related articles and studies previously provided to the FAA in January 2008, as well as a 2011 World Health Organization report on noise ("WHO Report"). AR 17464-845.

The Corps directed these comments to the FAA who responded that noise impacts were adequately analyzed using its accepted methodology, and would be significantly mitigated through the ongoing noise abatement programs. AR 21330. On May 31, 2011, the Corps issued a second public notice, AR 19488-524, and extended the public comment period for an additional 30 days. AR 19494. In July 2011, the FAAprepared a Written Re-Evaluation of the FEIS which again addressed noise impacts and mitigation. AR 19934-20065. Plaintiffs did not challenge this Written Re-Evaluation. The Corps then issued its Memorandum for Record/Environmental Assessment ("MFR/EA") in October 2011, AR 21664-737, and shortly thereafter, the permit at issue here. AR 21745-89.

II. DISCUSSION
A. Legal Standards.

The Court may grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To discharge this burden, the movant must demonstrate a lack of evidence supporting the nonmoving party's case. Id. at 325.

After the movant has met its burden under Rule 56(c), the burden of production shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "may not rely merely on allegations or denials in its own pleading," but instead must come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 587.

As long as the non-moving party has had an ample opportunity to conductdiscovery, it must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "A mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

NEPA, 42 U.S.C. §§ 4321-4370h, is "essentially a procedural statute that requires federal agencies to inform themselves of the environmental effects of proposed federal actions." Fla. Keys Citizens Coal., Inc. v. U.S. Army Corps of Eng'rs, 374 F. Supp. 2d 1116, 1123 (S.D. Fla. 2005) (citing Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1214 (11th Cir. 2002)). When an agency proposes any "major [f]ederal action[] significantly affecting the quality of the human environment," NEPA mandates the preparation of an EIS. 42 U.S.C. § 4332(2)(C). "Agencies are not required to duplicate the work done by another federal agency which also has jurisdiction over a project." Sierra Club, 295 F.3d at 1215. When a project has both a lead agency and cooperating agencies, a cooperating agency may adopt an EIS signed by a lead agency, provided it conducts "an independent review of the statement" and finds that its "comments and suggestions have been satisfied." Id. (quoting 40 C.F.R. § 1506.3(c)).

"If, after the original EIS is prepared, the agency 'makes substantial changes in the proposed action that are relevant to environmental concerns,' or if there are 'significant new circumstances or information relevant to environmental concerns andbearing on the proposed action or its impacts,' the agency is required to prepare a supplemental environmental impact statement (SEIS)." Id. (quoting 40 C.F.R. § 1502.9(c)(1)). The standard for determining when a SEIS is required is "essentially the same" as the standard for determining when an EIS is required. Id. at 1215-16 (quoting Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. Unit A July 1981)).3 If "'the post-[original EIS] changes in the [project] will have a "signific...

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