Club v. Lt. Gen. Robert L. Van Antwerp

• Citation: 709 F.Supp.2d 1254
• Decision Date: 30 January 2009
• Docket Number: Case No. 03-23427-CIV-HOEVELER.
• Court: U.S. District Court — Southern District of Florida
• Parties: SIERRA CLUB, Natural Resources Defense Council, and National Parks Conservation Association, Plaintiffs,v.Lt. Gen. Robert L. VAN ANTWERP, Chief of Engineers, United States Army Corps of Engineers, and H. Dale Hall, Director, United States Fish and Wildlife Service, Defendants,Miami-Dade Limestone Products Association, Inc., Vecellio & Grogan, Inc., Tarmac America LLC, Florida Rock Industries, Inc., Sawgrass Rock Quarry, Inc., Apac-Florida, Inc., Rinker Materials of Florida, Inc., Kendall Properties and Investments, Defendants-Intervenors.

709 F.Supp.2d 1254

SIERRA CLUB, Natural Resources Defense Council, and National Parks Conservation Association, Plaintiffs,v. Lt. Gen. Robert L. VAN ANTWERP, Chief of Engineers, United States Army Corps of Engineers, and H. Dale Hall, Director, United States Fish and Wildlife Service, Defendants,Miami-Dade Limestone Products Association, Inc., Vecellio & Grogan, Inc., Tarmac America LLC, Florida Rock Industries, Inc., Sawgrass Rock Quarry, Inc., Apac-Florida, Inc., Rinker Materials of Florida, Inc., Kendall Properties and Investments, Defendants-Intervenors.

Case No. 03-23427-CIV-HOEVELER.

United States District Court S.D. Florida.

Jan. 30, 2009.

COPYRIGHT MATERIAL OMITTED

Bradford H. Sewell, Lawrence M. Levine, S. Ansley Samson, Natural Resources Defense Council Inc., Stanley N. Alpert, Alpert Firm, New York, NY, Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, DC, Paul Joseph Schwiep, Coffey Burlington, Charles H. Baumberger, Rossman Baumberger Reboso & Spier, Miami, FL, for Plaintiffs.

Mark A. Brown, Michael Semler, Norman L. Rave, Jr., Barry Alan Weiner, United States Department of Justice, Environment and Natural Resources, Washington, DC, for Defendants.

Douglas Martin Halsey, Thomas Neal McAliley, White & Case, Miami, FL, Lawrence R. Liebesman, Rafe Petersen, Holland & Knight, Washington, DC, Martin John Alexander, Holland & Knight, West Palm Beach, FL, John A. Devault, III, Bedell Dittmar Devault Pillans & Coxe, Jacksonville, FL, for Defendants-Intervenors.

ORDER PURSUANT TO REMAND

WILLIAM M. HOEVELER, Senior District Judge.

THIS CAUSE comes before the Court to determine whether the United States Army Corps of Engineers complied with the Clean Water Act, 33 U.S.C. § 1251(CWA), National Environmental Policy Act, 42 U.S.C. § 4321 (NEPA), and the Administrative Procedure Act, 5 U.S.C. § 706(APA), when it issued permits in 2002 to several limestone mining corporations for the discharge of dredged or fill material into wetlands in Miami-Dade County, pursuant to 33 U.S.C. § 1344 (§ 404 of the CWA).

In granting summary judgment for the Plaintiffs in 2006, the Court concluded that the Corps did not comply with its statutory and regulatory obligations. Sierra Club v. Flowers, 423 F.Supp.2d 1273 (S.D.Fla.2006). After hearing argument from all sides regarding the appropriate remedy, the Court then issued a second order vacating the permits. Sierra Club v. Strock, 495 F.Supp.2d 1188 (S.D.Fla.2007). On appeal by the Intervenors, the Eleventh Circuit vacated, in part, the Court's summary judgment order,¹ and vacated the additional order setting aside the permits. Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir.2008). The Court of Appeals remanded the case with instructions that, in resolving the summary judgment motions, the Court must apply the proper degree of deference to the Corps' permitting decision. Having freshly reviewed the administrative record and heard additional argument from the parties, the motions are now ripe for resolution as directed by the Court of Appeals. For the reasons explained below, the Plaintiffs' motion is GRANTED and the cross motions for summary judgment are DENIED.

BACKGROUND

The facts of this dispute have been addressed in detail on previous occasions. Briefly, this case is about a group of limestone mining corporations seeking permits under § 404 of the CWA to excavate limestone in a 54,000 acre area at the northwestern edge of Miami-Dade County and in areas near Everglades National Park. The area is primarily wetlands overlying the Biscayne Aquifer, the main source of drinking water for Miami-Dade County.

The Corps issued the permits in April 2002 see Record of Decision (ROD), found at Administrative Record 1028 (AR1028), for a period of ten years, authorizing approximately 5,400 acres of wetlands to be converted to mining pits. The Corps' approval relied on an Environmental Impact Statement (EIS), AR614, issued two years earlier, which addressed the miners' original proposal for fifty years of mining and a total of 14,300 acres of destroyed wetlands, AR65. That EIS was criticized by a number of agencies, organizations, and individuals, and, as a result, the Corps reduced the initial term of these permits to ten years, with the stated intention of issuing additional permits in the future.² The Corps was asked by several agencies to further study the issue, i.e., prepare a Supplemental EIS (SEIS), prior to approval of the permits and again after the permits were issued, but the Corps elected to rely on the original EIS.

After the Court entered summary judgment for Plaintiffs in March 2006, the parties were granted an evidentiary hearing regarding what should occur while the Corps was preparing an SEIS and considering whether to reauthorize the permits, withdraw the permits, or take some other action. During that phase of the case, the Court received evidence (not contained in the administrative record) of the presence of benzene in the Biscayne Aquifer. The benzene was detected in water pumped from an area known as the Northwest Wellfield, located within the area of the mining authorized in these permits. This contamination resulted in several municipal wells in the Wellfield being shut down, an investigation by Miami-Dade County into the source, and criticism directed toward the miners for using chemically hazardous blasting compounds near the County's wells. After weighing the evidence, I entered a supplemental order in July 2007 which imposed the traditional APA remedy of vacating the agency action; I also concluded that the limestone mining had contributed to the benzene contamination. In response to the Intervenors' claims of substantial economic hardship in the event of a cessation of all mining under these permits, I stayed the effect of the ruling as to mining in locations other than those nearest to the wells. The Corps subsequently issued a draft SEIS ³ and a “Second Three-year” review for the permits.

ANALYSIS

The CWA claims before the Court relate to whether the Corps was arbitrary or capricious in determining that no practicable alternatives existed. The NEPA claims are whether the EIS met NEPA's requirements and whether the Corps' determination that the ten year permits would have no significant effect (beyond the effects studied in the original EIS) was arbitrary, capricious, or an abuse of discretion.

Standard of review

A court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or without observance of procedure required by law.” 5 U.S.C. § 706(2)(A).⁴ The pertinent APA standard of review is “exceedingly deferential,” Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir.1996), and a court must not “substitute its judgment for that of the agency,” Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir.1996). However, the “failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct,” and “courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.” Simmons v. Block, 782 F.2d 1545, 1549-1550 (11th Cir.1986) (citations omitted) (affirming decision to set aside agency action as arbitrary and capricious where agency “followed neither course of action specified in the regulations”). Similarly, the Eleventh Circuit has held that it is unacceptable for an agency to “[i]nterpret[ ] a regulation in a manner that robs it of all meaning.” Sierra Club v. Martin, 168 F.3d 1, 5-7(11th Cir.1999) (agency decision entitled to no deference when decision was “contrary to the clear language of [agency's forest plans] and the [National Forest Management Act]”).

Statutory and regulatory guidance

In issuing 404(b) permits the Corps' decisionmaking authority is governed substantively by the CWA and procedurally by both the CWA and NEPA. The primary focus of the analysis that follows is the CWA, although I have annotated that analysis with selected provisions of NEPA.

The CWA imposes requirements on the Corps when deciding whether to issue permits for the discharge of dredged or fill material into wetlands.⁵ The CWA also requires that the Corps follow guidelines developed by the Environmental Protection Agency (EPA), 40 C.F.R. Part 230 (the Section 404(b)(1) Guidelines), and regulations adopted by the Corps, 33 C.F.R. Parts 320-329, when issuing such permits.

The 404(b)(1) Guidelines prohibit the Corps from issuing a 404(b) “dredge or fill” permit if the proposed project can be developed without disturbing wetlands, that is, if an environmentally preferable and practicable alternative exists. 40 C.F.R. 230.10(a). In addition to the 404(b)(1) Guidelines, the Corps' own CWA regulations also specifically require the Corps to consider practicable alternative locations and methods for accomplishing the project's objective see 33 C.F.R. 320.4(a)(2)(ii). A practicable alternative is one that is “available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. 230.10(a)(2).

The Corps also must follow the procedures imposed by NEPA. NEPA's purpose is to “promote efforts which will prevent or eliminate damage to the environment.” 42 U.S.C. § 4321. The statute contains procedural directives to “insure that [high quality] environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. 1500.1(b). “Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA,” id., and “Federal agencies must comply with both the letter and spirit of the statute,” 40 C.F.R. 1500.1(a). The statute requires the preparation of an EIS, 42 U.S.C. § 4332(2)(c), which is governed by Corps...