Sierra Club v. U.S. Army Corps of Engineers, 2007 WL 4276553 (11th Cir. Dec. 7, 2007).

Sarah Spigener, 3L, University of Mississippi School of Law

The Eleventh Circuit Court of Appeals recently upheld a regional general permit (RGP) issued by the U.S. Army Corps of Engineers (Corps) authorizing the dredge and fill of wetlands across a large area of the Florida panhandle. Environmental groups challenged the Corps’ action as violating the general permit provisions of the Clean Water Act (CWA).

Background
In June 2004, the St. Joe Company, Florida’s largest private landowner, received a RGP from the Corps allowing it to discharge dredged or fill material into non-tidal wetlands “when constructing residential, commercial, and recreational projects, in addition to accompanying roads, parking lots, garages, yards, utility lines, and stormwater management facilities,” provided the company adhere to specific environmental conditions.1 The RGP covered more than 48,000 acres in the Florida panhandle.
      Section 404(e) of the CWA authorizes the Corps to issue RGPs when the proposed permit activities are “similar in nature” and will “cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment.” General permits are often used by the Corps to prevent unnecessary delays and administrative burdens associated with the individual permitting process. The June 2004 RGP, however, covered an unusually large geographic area and immediately raised red flags within the environmental community.
      To secure the permit, St. Joe agreed “not to alter more than 125 acres of high-quality wetlands on the property and not more than 20 percent of low-quality wetlands in any one sub-basin.”2 The company also agreed to mitigate that 20 percent loss through the use of conservation areas and mitigation banks. All in all, the RGP has twenty-four specific conditions intended to preserve 10,000 acres of wetlands in the coverage area.
   Several environmental organizations brought action against the Corps alleging that the permit violated the CWA. The district court found in favor of the Corps, and the organizations appealed.

Analysis
The parties dispute whether the development activities authorized by the permit are similar in nature and whether the activities will have minimal environmental impacts. While conceding that this was a “very close case,” the court concluded that the RGP“special conditions effectively cabin the scope of permitted activities and mitigate any environmental impacts such that the [permit] is a proper exercise of the Corps’ Section 404(e) general permitting authority.”3
      The court highlighted a number of the special conditions it felt would operate to minimize the environmental impact. For instance, the permit requires the conservation of ten wetland units, comprising over 13,200 acres. The court also seemed comforted by the application process laid out by Special Condition 20. Although a RGP eliminates the need for developers to obtain individual permits, applications must still be submitted to the Corps. Special Condition 20 establishes internal review procedures which include a pre-application meeting with representatives from several federal, regional, and state agencies for evaluation of the project and submission of a detailed application packet. If the Corps determines that the project meets the conditions of the RGP, it may issue a letter of authorization. Development cannot begin until the authorization is received. If the project fails to qualify, the developer must apply for an individual permit.
      The court also highlighted other specific conditions of merit. These include a condition that individual projects have specific stormwater treatment plans meeting higher standards for stormwater discharge than Florida’s current requirements, restrictions on the type and quality of dredge material, and requirements of buffers for Lake Powell and high quality wetlands. Despite being “acutely aware of [Sierra Club’s] legitimate concerns over abuse of the general permitting process,” the court concluded that Corps made the best argument when it urged the court to “grant deference to its interpretation regarding the conditions under which it may issue a general permit under Section 404(e) of the [CWA].”4

Conclusion
The Eleventh Circuit obviously struggled with the decision it made in the present case. Relying heavily on the district court’s 2006, 115-page opinion, the court ultimately decided that the permit, because of the special conditions, fell within the scope of Section 404(e). According to the court, the special conditions “reflect the Corps’ efforts to design a permit that is considerate of the [CWA] and yet tailored to the unique problems presented by this large area of northwest Florida.”5

Endnotes
1.  Expansive EPA Wetlands General Permit Draws Activists’ Lawsuits, Inside EPA, July 22, 2005.
2.  Id.
3.  Sierra Club v. U.S. Army Corps of Engineers, 2007 WL 4276553 at *2 (11th Cir. Dec. 7, 2007).
4.  Id. at *4.
5.  Id.