Sierra Club v. U.S. Army Corps of Engineers

• Decision Date: 19 November 2006
• Docket Number: No. 3:05CV459 J32TEM.,No. 3:05CV362 J32TEM.,3:05CV362 J32TEM.,3:05CV459 J32TEM.
• Citation: 464 F.Supp.2d 1171
• Parties: SIERRA CLUB, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. Natural Resources Defense Council, Plaintiff, v. United States Army Corps Of Engineers, et al, Defendants.
• Court: U.S. District Court — Middle District of Florida

464 F.Supp.2d 1171

SIERRA CLUB, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

Natural Resources Defense Council, Plaintiff, v. United States Army Corps Of Engineers, et al, Defendants.

No. 3:05CV362 J32TEM.

No. 3:05CV459 J32TEM.

United States District Court, M.D. Florida, Jacksonville Division.

November 19, 2006.

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Lesley Gay Blackner, Blackner, Stone & Assoc., Palm Beach, FL, Kenneth B. Wright, Bledsoe & Schmidt, PA, Jacksonville, FL, Allison D. Sondak, David N. Ellenhorn, Tom Stein, Proskauer Rose, LLP, Melanie Sheperdson, Mitchell S. Bernard, New York, NY, for Plaintiffs.

Dorothy Lowe Boardman, Marcio W. Valladares, U.S. Attorney's Office, Jacksonville, FL, Paul Cirino, Ruth Ann Storey, U.S. Department of Justice, Nicholas J. Landau, Washington, DC, for Defendants.

FINAL ORDER

CORRIGAN, District Judge.

On June 30, 2004, defendant United States Army Corps of Engineers ("Corps") issued SAJ-86, a regional general permit ("RGP"), which contemplates the dredge and fill of wetlands to accommodate development in a 48,150 acre region in Northwest Florida. Plaintiffs Sierra Club and Natural Resources Defense Council filed suit against the Corps and two Corps officials in April and May of 2005¹ seeking to enjoin the Corps from authorizing the dredge and fill of any wetlands pursuant to SAJ-86, claiming that the Corps' issuance of this permit was in violation of both the Clean Water Act of 1977, 33 U.S.C. §§ 1251, et seq. ("CWA"), and the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"), and various attendant regulations. During the course of these proceedings, the parties debated whether this regional general permit represents good environmental policy and whether the Corps should use its permitting authority to authorize activity of the scope and scale contemplated here. However, the Court does not join this debate as the Court's sole task is to determine whether the Corps' issuance of this permit is in compliance with the law. Having now considered this case on a full record, I find, by the slimmest of margins, that the Corps' issuance of regional general permit SAJ-86 does not violate the statutory and regulatory requirements of either the CWA or NEPA. I will therefore be vacating the previously issued preliminary injunction (Doc. 72) and entering judgment for the Corps in both consolidated cases.

I. Background

The region covered by SAJ-86 is a 48,-150 acre parcel along U.S. Highway 98 in Florida's panhandle. Intervenor St. Joe Company, Inc. owns more than 75 % of the land covered by the permit and much of St. Joe's business there has focused on silviculture (pine tree production), an industry that has dominated the region since the 1920s. In response to expanding population growth in the area, St. Joe has modified its business plan to include commercial and residential development. Because the region's landscape is permeated with wetlands, which account for approximately 60% of the land area, most of these developments require a CWA permit so that wetlands can be dredged or filled to accommodate the development.

Under the CWA statutory scheme, the Corps is the agency that issues CWA permits for the dredge and fill of navigable waters, which can include wetlands. 33 U.S.C. § 1344. Rapanos v. United States, ____ U.S. ____, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). The Corps may issue either an individual or a general permit for this purpose. An individual permit is issued to allow the dredge and fill of wetlands for a single specific project that is subject to public review and input and whose details and plans meet numerous Corps guidelines and standards. 33 U.S.C. § 1344(a). A general permit, on the other hand, is issued on a national, regional, or statewide basis and allows the dredge and fill of wetlands for an entire category of activities, provided that the activities are similar in nature and will cause only minimal adverse environmental effects, both separately and cumulatively. 33 U.S.C. § 1344(e). Like an individual permit, issuance of a general permit is subject to Corps standards and guidelines and public input and review. However, usually once a general permit has issued, a landowner seeking to conduct activities in conformity with a general permit's terms need only secure an "authorization" from the Corps before beginning dredge and fill activities. This authorization process is far less onerous than the original permitting process.

In 2000, after noting an increase in individual permit applications from St. Joe for development projects in northwest Florida, the Corps initiated discussions with St. Joe and other federal and state agencies regarding the possibility of arriving at a regional development plan through use of a general permit that would guide growth in a manner which maximized protection of wetlands on a larger scale than would be possible on an individual project-by-project basis.² Over the next few years, the Corps, St. Joe, and several state and federal agencies cooperatively developed a plan for wetlands management in the area, the result of which was the Corps' June 30, 2004 issuance of regional general permit SAJ-86.³ By all accounts, SAJ-86 is unique and unprecedented in that it covers an extraordinarily large land area (over 75 square miles) in comparison to other regional general permits and because a single landowner (St.Joe) owns an overwhelming proportion of the land covered by the permit (over 80%) and has specific rights and obligations under the permit terms that do not apply to the other landowners who own property within the RGP area. Tr.⁴ 30-39. See too, AR 3636 (comment by Corps' project manager for SAJ 86 (Gordon Hambrick) that permit "would be largest in Florida for the types of activities E described"; stating he was "not aware of any similar RGPs having been developed in any of the other Corps Districts in the nation").

Under SAJ-86, landowners can dredge or fill wetlands to construct residential, commercial, recreational and institutional projects in the regional general permit area. However, the amount of wetlands dredged or filled as a result of these construction activities are limited in the following ways: first, impacts to "high quality" wetlands⁵ throughout the permit area are limited to 125 total acres; second, impacts to "low quality" wetlands are limited to 20% of the wetlands in any one of nineteen different geographic sub-basins;⁶ third, all lost wetlands are to be mitigated either through on-site mitigation or through two off-site mitigation banks;⁷ and fourth, the permit designates up to 13,200 acres of land as "conservation units," which land St. Joe (the owner of the 13,200 acres) is to ultimately place into conservation by granting easements to the Florida Department of Environmental Protection ("DEP") for the perpetual protection of those acres.⁸ AR 3802, AR 3880-82. The permit contains numerous other terms that do not directly affect the amount of wetlands to be dredged or filled but that otherwise affect the impact of construction activities on wetlands and the environment generally, such as wetland buffer requirements, restrictions on the type of wetland fill that can be used, septic tank and drainfield prohibitions, required methods of storm-water management for new construction projects, and limits to the placement of road crossings. The permit also contemplates the execution between St. Joe and the DEP of a 30 page Ecosystem Management Agreement ("EMA"),⁹ the conditions of which are specifically incorporated into SAJ-86 as special conditions applicable to St. Joe. Special Condition 1, AR 3876. Among these conditions is that the EMA (and by extension, the RGP) will serve as the exclusive mechanism for St. Joe to initiate the types of activities authorized by the permit within the 31,369 acres (the total acreage St. Joe owns in the RGP area) covered by the EMA.

Under SAJ-86, developers, including St. Joe, and others seeking to build residential, commercial, recreational and institutional projects that impact wetlands within the permit area apply to the Corps' District Engineer who may authorize individual projects upon finding them to be compliant with the terms of SAJ-86.¹⁰ Review of proposed projects for authorization includes review of the proposed mitigation plans for wetlands that will be dredged or filled by the project. Authorization for a project may also be conditioned upon the satisfaction of additional terms set forth by the District Engineer to minimize adverse environmental impacts. Special Condition 21, AR 3886. Notwithstanding the existence of SAJ-86, an owner of land within the permit boundaries is not required to seek authorization under the permit for projects impacting wetlands, even where the proposed projects would be covered by SAJ-86. Rather, a landowner may still, at its own option, apply for an individual permit to dredge and fill within the regional general permit area or could seek authorization under a different general permit, such as Nationwide Permit ("NWP") 39, that applies to the type of project otherwise authorized by SAJ-86.¹¹¹² These options, however, would not apply to St. Joe, which is obligated by the terms of the EIVIA. to use the EMA and RGP exclusively for construction activities covered by the permit.¹³

In April and May of 2005, the plaintiffs filed suit against the Corps and two Corps officials. The complaints allege that the Corps violated the CWA because SAJ-86 is beyond the scope of the CWA's general permitting scheme; the Corps failed to comply with the CWA statutory requirements and related regulatory requirements that a general permit issue only for categories of activities that are similar in nature; the Corps failed to comply with the CWA statutory requirement and its implementing regulatory requirements that a general...