Sierra Club v. United States Army Corps of Eng'rs
| Decision Date | 09 January 2023 |
| Docket Number | 8:20-cv-287-CEH-JSS |
| Parties | SIERRA CLUB and DANIEL RAMETTA, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, TODD T. SEMONITE and ANDREW KELLY, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
REPORT AND RECOMMENDATION
Plaintiffs Sierra Club and Daniel Rametta move for summary judgment against the United States Army Corps of Engineers, its Commander and Chief of Engineers Lt. Gen. Todd T. Semonite in his official capacity, and the Commander and District Engineer for the Jacksonville District Colonel Andrew Kelly also in his official capacity (the Federal Defendants). (Plaintiffs' Motion, Dkt. 68.) Plaintiffs challenge the decision of the Army Corps of Engineers (Corps) to issue a Clean Water Act (CWA) permit to Pasco County Board of Commissioners and the Florida Department of Transportation for the construction of the Ridge Road Extension (RRE) in Pasco County, Florida. (Id.) The RRE project spans 8.65 miles and requires fill material to be deposited over 42.40 acres of high-quality preserved wetlands. (Dkt. 1 ¶ 1.) Plaintiffs assert that the issuance of the RRE permit violated the Administrative Procedures Act (APA), the National Environmental Policy Act (NEPA), and the CWA. (Dkt. 1 ¶¶ 1-4.) The Federal Defendants disagree and cross-move for summary judgment. (Federal Defendants' Motion, Dkt. 82.) Additionally, the Pasco County Board of County Commissioners (Pasco County), as an intervenor/defendant, crossmoves for summary judgment on Plaintiffs' claims. (Intervenor/Defendant's Motion Dkt. 83.) On March 30, 2022, the court conducted a hearing on the Motions. Upon consideration, and for the reasons set forth below, the court recommends that Plaintiffs' Motion be denied, and Defendants' and Intervenor's Motions be granted.
The RRE is a roadway project spanning 8.65 miles and requires fill material to be deposited over 42.40 acres of wetlands, 37.37 acres of which will be permanently impacted. (AR47511, 47770.) The RRE will run for 2.6 miles through the 6,500-acre Serenova Tract of the Starkey Wilderness Preserve, which is located in Pasco County, Florida. (AR47512, 47772, 47810.) The Serenova Tract has been deemed an Aquatic Resource of National Importance (ARNI) by the U.S. Fish and Wildlife Service (FWS) and the U.S. Environmental Protection Agency (EPA). (AR132-133, 8741.) It was purchased as mitigation for the adverse impacts of the Suncoast Parkway roadway. (AR132-133, 47810.)
The RRE project consists of two phases. (AR47770.) Phase I consists of a 4.2 mile four-lane divided roadway with features such as a sidewalk, multi-use path, stormwater collection and conveyance, floodplain compensation areas, and wildlife crossings. (AR47771-47772.) Phase I also includes a full diamond interchange road junction and approximately one mile of a four-lane divided roadway, as well as a perimeter exclusion fence that incorporates snake mesh to prevent snakes and small wildlife from entering the roadway. (AR47773, 47775.) Phase II, which is located east of the Suncoast Parkway, consists of a four-lane divided roadway. (AR47776.)
Pasco County first applied for an extension of Ridge Road over two decades ago. (AR2744.) On February 2, 2000, the Corps issued a public notice under permit application number SAJ-1998-02682. (AR778-779.) Between 2000 and 2010, the EPA and the FWS recommended denial of the initial application, the public submitted comments regarding the initial application and requested a hearing, and the Corps requested additional information from Pasco County regarding the initial application. (AR129; AR131-138; AR3764; AR45926.) On September 9, 2010, the Corps outlined additional information needed from Pasco County in support of the application and requested that Pasco County submit the information within 30 days. (AR3764.) In October 2010, Pasco County requested an extension of time to provide the additional information. On November 5, 2010, the Corps denied Pasco County's request for additional time and withdrew the initial permit application. (Dkt. 52-1 at 6-7.)
On February 4, 2011, Pasco County and co-applicant Florida Turnpike Enterprise (Applicants) submitted a new application, Permit Application No. SAJ-2011-00551. (AR47780.) On March 16, 2011, the Corps advised the Applicants that the new application was insufficient and requested that the Applicants submit an updated application:
Upon review of the [January 31, 2011] application, the [Corps] found a significant amount of outdated, conflicting, and omitted information . . . To address the deficiencies outlined in this letter and correct all outdated, conflicting, and omitted information, Pasco County should submit a revised comprehensive and current application.... The Corps will publish a public notice and evaluate the project based solely on the contents of the revised submittal. Information submitted prior to January 31, 2011, which Pasco County or Florida's Turnpike Enterprise would like to be considered in this application, should be resubmitted or specifically referenced in its application.
On May 31, 2011, the Applicants submitted an updated permit application. (AR165-264.) On November 28, 2011, the Corps issued a new public notice for this application under the new 2011 permit application number. (AR5045-5057.) The public notice explained the differences between Pasco County's old project and the new proposed project. (AR5045-5057.) Moreover, the public notice included the following overall project purpose:
To improve east-west roadway capacity between US-19 and US-41 and enhance overall mobility in both west and central Pasco County in accordance with the County's current Comprehensive Plan and the Metropolitan Planning Organization's Long Range Transportation Plan. The project will also provide additional roadway capacity and improved routing away from coastal hazard areas and improve hurricane evacuation clearance times in the event of a hurricane or other major weather-related occurrence in accordance with State of Florida requirements and the County's current Comprehensive Plan.
(AR5046.) After requesting public comment, the Corps received “roughly 1,500 comments.” (AR7709.)
Between 2011 and the date the permit was issued, the Corps asked Pasco County to provide new, updated, and other relevant information to proceed with the permit evaluation. (AR48097-48819.) The Corps also advised Pasco County of various shortcomings with the information Pasco County provided and about additional information that it should provide to the various agencies conducting their review. (AR8977-8970, 11415-11416, 13029-13031, 17082-17083, 33138, 33140, 48097-48819.) As a result of these requests and comments, the Applicants advised the Corps in August 2018 that Phase II of the RRE project was being revised, and on September 25, 2018, the Corps issued a new public notice, still under the 2011 application number, “due to the changes in the application that would affect the public's review of the proposal.” (AR47782, 48815.) Additional comments from the public were received and several agencies provided comments regarding the RRE. Indeed, the administrative record reflects that while evaluating Pasco County's application, the Corps coordinated with various agencies such as the FWS, the Florida Fish and Wildlife Commission, the State Historic Preservation Office, the EPA, the National Marine Fisheries Service, and the Seminole Tribe of Florida. (AR41995, 42058, 47813, 47838-47839, 48016-48028, 45922-46079.)
On December 20, 2019, Colonel Andrew D. Kelly Jr., as Commander and District Engineer of the Jacksonville District of the Corps, approved the Corps' 264-page Environmental Assessment (EA), Public Interest Review, and Statement of Findings for the RRE application. (AR47769-48032.) In its EA, the Corps concluded that Pasco County's preferred route to construct the RRE, Alternative Modified 7a, is the least environmentally damaging practicable alternative (LEDPA). (AR47965.) The Corps also determined that the RRE would not have a significant impact on the environment. (AR47833-47839.) As such, the Corps determined that it did not need to prepare an Environmental Impact Statement. (AR47834); see also (AR48031.) In light of the Corps' EA and Colonel Kelly's approval, the Corps granted the CWA Section 404 Permit. (AR47511-47702.)
On February 6, 2020, Plaintiffs filed this action, challenging the Corps' decision to issue the Permit as arbitrary, capricious, and in violation of NEPA, CWA, and the APA. (Dkt. 1.)
The Corps' decision to issue the CWA Section 404 Permit to Pasco County and the Florida Department of Transportation for the construction of the RRE project in Pasco County constitutes a final agency action subject to judicial review under the APA, 5 U.S.C. §§ 701-706. Under the APA the court's review is limited to the agency's administrative record. 5 U.S.C. § 706; Defs. of Wildlife v. U.S. Dep't of Navy, 733 F.3d 1106, 1114 (11th Cir. 2013).
An agency's decision will be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is an “exceedingly deferential” standard, Fund for Animals v. Rice, 85 F.3d 535, 541 (11th Cir. 1996), such that a court's role is only “to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation and internal quotation marks omitted).
Agency action may be set aside only “for substantial procedural or substantive...
To continue reading
Request your trial