Riverkeeper v. U.S. Army Corps of Eng'rs

Decision Date30 September 2020
Docket NumberCV 418-251
PartiesALTAMAHA RIVERKEEPER; ONE HUNDRED MILES; CENTER FOR A SUSTAINABLE COAST, INC.; and SURFRIDER FOUNDATION, Plaintiffs, v. THE UNITED STATES ARMY CORPS OF ENGINEERS; LT. GENERAL TODD T. SEMONITE, in his official capacity as Commanding General of the U.S. Army Corps of Engineers; COL. DANIEL HIBNER, in his official capacity as District Commander of the Savannah District; TUNIS MCELWAIN, in his official capacity as Chief of the Regulatory Branch of the U.S. Army Corps of Engineers, Defendants, SEA ISLAND ACQUISITION, LLC, Defendant-Intervenor.
CourtU.S. District Court — Southern District of Georgia
ORDER

This is an action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., challenging Permit Number SAS-2015-00742 (the "Permit") issued by the United States Army Corps of Engineers (the "Corps") to Sea Island Acquisition, LLC, and the subsequent modification of the Permit. The Permit allows Sea Island Acquisition to construct a new T-head groin on the Sea Island Spit and to dredge and pump sand from an offshore source for construction of the T-head groin, new dunes and beach renourishment. All parties in the case have filed their respective motions for summary judgment, which are ripe for adjudication.1 The Federal Defendants and the Defendant-Intervenor Sea Island Acquisition call upon the Court to find that the Corps did not act arbitrarily and capriciously by issuing the Permit and modification and that the Corps acted within its discretion and authority in issuing the Permit and modification; thus, they seek judgment as a matter of law on all of Plaintiffs' claims. Plaintiffs, four separate and distinct conservation groups, ask the Court to vacate the Permit and require removal of any portionof the groin that has been built as well as mitigation of any impact caused by the construction of the project.

I. STATUTORY FRAMEWORK

Plaintiffs seek review of the Corps' actions under the APA for alleged violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1388, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370m, and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544.

The CWA was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Section 301(a) of the CWA prohibits discharges of pollutants, such as dredged or fill material, into "navigable waters" except in compliance with the statute. 33 U.S.C. § 1311(a). Section 404(a) authorizes the Secretary of the Army, acting through the Corps, to issue permits for the discharge of dredged or fill material at specified disposal sites. 33 U.S.C. § 1344(a). Because the Project at issue in this case involved the placement of dredged or fill material in the navigable waters of the United States, a Section 404 permit was required.

The Corps issues CWA Section 404 permits under the guidance and requirements imposed by its regulations, see 33 C.F.R. Pt. 320, as well as the CWA Section 404(b)(1) Guidelines developed by the Environmental Protection Agency and the Corps, see 40 C.F.R.Pt. 230. The Section 404(b)(1) Guidelines specify that the Corps must ensure that the proposed fill material will not cause any significantly adverse effects on human health or welfare, aquatic life, aquatic ecosystems, or recreational, aesthetic, or economic values. 40 C.F.R. § 230.10(c)(1)-(4). In addition, "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternate does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a).

NEPA requires federal agencies to consider and disclose potential environmental effects of a proposed "major federal action," which includes CWA Section 404 permits. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989). NEPA is a purely procedural statute; it does not mandate substantive results.2 Id. It "requires only that the agency take a 'hard look' at the environmental consequences before undertaking a major action." N. Buckhead Civil Ass'n v. Skinner, 903 F.2d 1533, 1540-41 (11th Cir. 1990) (quoted source omitted). An agency's evaluation of environmental consequences must be based on scientific informationthat is both "accurate" and of "high quality." 40 C.F.R. § 1500.1(b). If an agency relies on the permit applicant to submit environmental information, the agency "shall independently evaluate the information submitted . . . and shall be responsible for its accuracy, scope, and content . . . ." 40 C.F.R. § 1506.5(a).

NEPA requires agencies to prepare an Environmental Impact Statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment . . . ." 42 U.S.C. § 4332(C). To determine if an action requires an EIS, the agency will prepare an Environmental Assessment ("EA"), a document that briefly describes the proposal, examines alternatives, and considers environmental aspects. 40 C.F.R. §§ 1501.4(b), 1508.9; Fund for Animals v. Rice, 85 F.3d 535, 546 (11th Cir. 1996). If the agency concludes the action will not have significant impact, it may issue a Finding of No Significant Impact ("FONSI") in lieu of an EIS. 40 C.F.R. § 1508.9(a)(1).

The ESA requires federal agencies to carry out the Congressional policy of conserving "endangered" or "threatened" plant and animal species. 16 U.S.C. § 1531(b). The ESA provides for the listing of species as threatened or endangered, if warranted, and for the designation of "critical habitat." 16 U.S.C. § 1533(a). Section 7 of the ESA requires that federal agencies ensure that any action authorized, funded, or carried out by such agency is not likely to "jeopardize the continued existenceof any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical . . . ." 16 U.S.C. § 1536(a)(2). The Secretary refers to either the Secretary of the Interior and the Secretary of Commerce, who in turn have delegated their responsibilities to the United States Fish and Wildlife Service ("USFWS") and the National Marine Fisheries Service ("NMFS"), respectively.3

If the action agency determines its action "may affect" a listed species or critical habitat, it is required to consult with the USFWS or NMFS depending on the species at issue. 50 C.F.R. § 402.14(a). If the action agency determines, with written concurrence of USFWS or NMFS, that the action "is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary." 50 C.F.R. § 402.13(a). A formal consultation is required if the agency action is likely to adversely affect listed species or critical habitat. Formal consultation culminates in the issuance of a "biological opinion" by USFWS or NMFS. See 50 C.F.R. § 402.14(g).

II. FACTUAL BACKGROUND

Under the APA, judicial review generally involves only the agency's administrative record, which documents the agency's decision-making process and justifies its decision. Thus, the facts set forth herein are either undisputed or drawn from the Administrative Record4 in this case as asserted by a party in its Statement of Material Facts. The Court has independently verified the facts against the asserting party's citation to the Administrative Record. The Court will only cite to the Administrative Record (or "AR" with the Bates page numbers) to the extent it believes helpful to do so.

Sea Island is a barrier island along the Georgia coast that is approximately five miles long. The southern portion of the island is an undeveloped area known as the Spit, which is largely protected by a conservation easement. In fact, the southern portion of the island provides habitat for threatened and endangered sea turtles and shorebirds. The Spit is part of the sand-sharing system of surrounding coastal barrier islands. Sea Island is also a popular recreation area for surfing, paddling, kayaking and walking along the beach.

In October 2015, Sea Island Acquisition, a private resort and real estate development company, filed an application with theCorps seeking a CWA Section 404 permit to construct a T-head groin south of property it sought to develop on Sea Island known as the "Reserve," which is located immediately north of the conservation easement boundary. (Application, AR at 3479-3682.) The application also sought authorization to construct dunes and renourish the beach between an existing groin and the proposed groin.5,6

A groin is a hard structure, often constructed of rock, concrete or steel, that is built perpendicular to the beach and extends into the water. Plaintiffs presented evidence by way of expert opinion and publications that groins may trap or block sand on the "updrift" side of the groin that would otherwise naturally move with the prevailing currents along the shoreline to the "downdrift" side of the groin. This may cause an acceleration of downdrift erosion. Plaintiffs also presented evidence that the proposed groin would have negative impacts on wildlife, especially sea turtles.

On December 18, 2015, the Corps published notice of the Project. The overwhelming majority of comments received by theCorps from individuals, federal and state agencies, and conservation organizations opposed the Project, and many requested a public hearing. (See generally Table of Requests for Public Hearing, AR at 548-558; Table of Issues and Concerns, AR at 559-728.) The Corps did not hold a public hearing.

Following the initial notice and comment period on Sea Island Acquisition's application, two major hurricanes, Matthew and Irma, caused substantial damage to Sea Island. The storms severely eroded the beach and many of the dunes on the Spit. Sea Island Acquisition was alerted that the...

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