D'Olive Bay Rest. v. U.S. Army Corps of Eng.

Decision Date15 March 2007
Docket NumberCivil Action No. 05-0561-BH-D.
Citation513 F.Supp.2d 1261
PartiesD'OLIVE BAY RESTORATION AND PRESERVATION COMMITTEE, INC., Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS; et al., Defendants, v. Cypress/Spanish Fort I, L.P., Intervenor/Defendant.
CourtU.S. District Court — Southern District of Alabama

Kenneth J. Riemer, Richard W. Fuquay, Mobile, AL, Richard H. Mays, Heber Springs, AR, for Plaintiff.

Eugene A. Seidel, U.S. Attorney's Office, Ann E. Taylor, Mobile, AL, for Defendants.

James A. Byram, Jr., Balch & Bingham, Montgomery, AL, Thomas M. O'Hara, McDowell Knight Roedder & Sledge, L.L.C., Mobile, AL, for Intervenor/Defendant.

FINDINGS OF FACT; CONCLUSIONS OF LAW AND ORDER

W.B. HAND, Senior District Judge.

This action is before the Court on the parties cross-motions for summary judgment (Docs. 26-27, 47-49, 50-51 and 56). This case involves a challenge to a permit issued by the United States Army Corps of Engineers ("Corps") to Cypress Equities ("Applicant" or "Cypress Equities" a/k/a "CSF") to fill wetlands and a streambed in conjunction with the construction of a 220 acre retail shopping center ("Project") in Spanish Fort, Alabama. The Plaintiff, D'Olive Bay Restoration and Preservation Committee, Inc. ("D'Olive"), filed this action against the Corps pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., claiming that the Corps violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., and the implementing regulations issued by the Council on Environmental Quality ("CEQ")(40 C.F.R. §§ 1500-08), the Corps (33 C.F.R. Part 230), and the U.S. Environmental Protection Agency ("EPA")(40 C.F.R. Part 230). Cypress/Spanish Fort I, L.P. ("CSF"), the developer of the Project, was granted leave to intervene as an Intervenor-Defendant. (Doc. 12).

D'Olive alleges the Corps failed to comply with NEPA in a variety of ways. First, it alleges that the Corps failed to adequately consider the direct and indirect impacts of the Project, including impacts upon (a) water quality and downstream siltation; (b) endangered species; (c) air quality; (d) noise in surrounding neighborhoods; (e) traffic; and (f) aesthetics. Second, D'Olive alleges that the Corps failed to comply with NEPA requirements in its analysis of cumulative impacts of the Project. Third, D'Olive alleges that the Corps improperly segmented the Project from (1) "project related transportation infrastructure improvements," and (2) a second permit application filed with the Corps By Cypress Equities three months after the issuance of the permit challenged here. Finally, D'Olive alleges that the Corps' alternatives analysis is "flawed." D'Olive seeks summary judgment on its claims for relief and asks the Court to vacate the permit issued by the Corps and instruct the Corps to prepare an Environmental Impact Statement ("EIS").

The Corps and CSF both contend that the Corps fully complied with the requirements of NEPA and all applicable implementing regulations, objectively evaluated the environmental effects of the proposed action, and sufficiently examined alternatives so as to allow a reasoned choice in the decision to permit the Project. They further contend that the record documents the "hard look" given by the Corps to all the potential impacts of the Project, including the cumulative impacts. Thus it is asserted that the Corps' Finding of No Significant Impact ("FONSI") and reliance on an Environmental Assessment ("EA") for permit issuance was wholly appropriate, and made in full compliance with NEPA and the Corps' regulations. Finally, they contend that an Environmental Impact Statement ("EIS") was not needed in order for the Corps to fully evaluate all of the Project's environmental impacts and there was no segmentation of any type by the Corps. The Corps and CSF argue that they are each' entitled to summary judgment because the issuance of the permit in this case is in all respects in full compliance with NEPA and the relevant regulations.

Upon consideration of the motions, plaintiffs response in opposition to the cross-motions filed by the Corps and CSF (Does. 58-59), the replies filed by the Corps and CSF (Does. 60-61), the Administrative Record (Doc. 35), and all other pertinent portions of the record, the Court concludes that the motions filed by the Corps and CSF are due to be granted while the motion filed by D'Olive is due to be denied.

FINDINGS OF FACT
A. The Parties and the Project

1. The plaintiff in this action, D'Olive, is a not-for-profit environmental organization that advocates the protection and preservation of water quality, scenic beauty, animal and aquatic species and habitat of the Mobile Bay area.

2. The defendant in this action, the Corps, is an agency of the United States of America that has been delegated responsibility by the Department of the Army for, inter alia, construction, management and operation of various lakes and other water resources of the United States of America. The Corps' management of water resources includes authority over wetlands and permitting for the discharge of dredged or fill material into the navigable waters of the United States.

3. The intervenor-defendant in this action, CSF, is a commercial real estate developer. CSF applied for and received a permit from the Corps to fill 13.4 acres of wetlands and 450 linear feet of stream to enable the construction of a shopping center in Spanish Fort, Alabama.1

4. CSF intended to locate a development site to create "a 220 — acre mixed use commercial development with a 130,000-square foot Bass Pro Shops as the main attraction and primary anchor tenant." (AR Vol. 1, § 2, p. 0014).

5. CSF selected the site currently at issue as the location for the development which it christened the Spanish Fort Town Center (the "Project"). The Project site is a 220-acre wooded, and occasionally timbered, parcel of land located on the northeast corner of the intersections of U.S. Highway 90 and Interstate 10 (subsequently referred to as the "development site" or simply "the site"). (AR Vol. 1, Tab 2, p. 0014). The site consists primarily of rolling hills with fairly steep topography. Elevations range from a few feet above sea level to approximately 175 feet. Many of the upland soils on the site are composed of fine, loamy sand with rapid runoff and a high hazard of erosion. Of the site's 220 acres, 28.9 acres are wetlands of medium to high quality, mostly contiguous to Joe's Branch. CSF proposed to clear and fill 13.4 of these 28.9 wetland acres. (AR Vol. II, Tab 59, pp. 0718-20).

6. The development site has "steep slopes of rolling hills and coastal ravines." The site is bisected by 4,069 feet of an ill-defined creek known as Joe's Branch and further cut by a 550-foot tributary of the same stream. Joe's Branch is a perennial braided stream2 that varies between somewhat defined to ill-defined channels. The upper reaches of the stream have been highly impacted by siltation from a power line right-of-way with severe erosion gullies. (AR Vol. I, Tab 7, pp. 0116-18; Tab 59, p. 0718). Joe's Branch runs south and southwest through the property. (AR Vol. I, Tab 2, p. 0067). CSF planned to bridge needed road crossings of Joe's Branch. Since, however, there was the possibility that there might be associated impacts to the stream, the CSF asked the Corps to treat these road crossings as impacted areas. The Corps evaluated impacts to 450 linear feet of stream. Some 28.9 acres of wetlands were also located on the development site, mostly associated with Joe's Branch and its tributary. Below the development site, Joe's Branch flows under Interstate 10 and enters D'Olive Creek, which then flows into Mobile Bay. (AR Vol. I, Tab 2, pp. 0035, 0037 and 0068-0069; AR Vol. II, Tab 59, p. 0720).

7. CSF's efforts to bring a large-scale, controlled development to this site first formally involved the Corps on or about March 8, 2004, when the Corps confirmed to Thompson Engineering, CSF's consultant, that the future site of the Spanish Fort Town Center indeed contained wetlands and other so-called "waters of the United States" within the Corps' regulatory jurisdiction. (AR Vol. I, Tab 1, p. 0001).

8. The determination that the site contained wetlands signaled the implication of a variety of federal and state statutes and regulations, including the CWA and NEPA and its implementing regulations. See, 33 U.S.C. § 1251, et seq.; 42 U.S.C. § 4321, et seq.

B. Regulatory and Legal Background

9. The CWA establishes a comprehensive program designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In order to construct this Project, CSF is required to obtain three (3) separate CWA permits: (1) a CWA § 401 permit, commonly referred to as the water quality permit; (2) a CWA § 402 permit, commonly referred to as the storm-water permit; and (3) a CWA § 404 permit, commonly referred to as the dredge and fill, or wetlands permit. Of these three CWA permitting programs (§ § 401, 402 and 403), Congress assigned administration of only one, the CWA § 404 permit program, to the Corps. The other two permitting programs (CWA § § 401 and 402) are administered by the states, in this instance by the Alabama Department of Environmental Management ("ADEM"). D'Olive challenges only the CWA § 404 permit issued by the Corps, not the CWA § § 401 and 402 permits issued by ADEM to CSF.

10. To achieve the goal of protecting the nation's waters, the CWA prohibits the discharge of pollutants, which include dredged or fill material, into navigable waters, unless that discharge is authorized by the grant of a CWA § 404 permit by the Corps. 33 U.S.C. § 1311(a). The Corps may issue individual, general or nationwide permits. 33 U.S.C. § 1344(a), (e); 33 C.F.R. § 320.1(c). This Project required an individual...

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